This Week's Techlaw News Round-up

Health and Care Act 2022 (with restrictions on advertising of “junk foods” online and on TV) granted Royal Assent, High Court rules central government use of private email accounts, instant messaging platforms and auto-delete functions for government business not unlawful, Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 published and more in this week’s round-up of UK and EU techlaw news developments not covered elsewhere on the SCL website.

UK law

Health and Care Act 2022 granted Royal Assent

The Health and Care Act 2022 has been granted Royal Assent. It amends the Communications Act 2003 to introduce new statutory controls on the advertising of products high in fat, sugar and salt (HFSS). The provisions aim to reduce children's exposure to the advertising of less healthy food and drink products on TV and online by requiring Ofcom to introduce a 5.30am to 9pm watershed for TV advertising of HFSS products, subject to specific exceptions. ODPS services that come within the scope of Part 4A of the Communications Act 2003 will also be included in the TV watershed. The Act also bans paid-for advertising online of HFSS products, subject to specific exemptions. The prohibitions will not apply to advertisements placed by food and drink SMEs. The restrictions are due to apply from 1 January 2023. 

High Court rules central government use of private email accounts, instant messaging platforms and auto-delete functions for government business not unlawful

The High Court has ruled in R (All the Citizens) v Secretary of State for Digital, Culture, Media and Sport and another; R (Good Law Project) v Prime Minister and others [2022] EWHC 960 (Admin),. The case arose in the context of two claims, regarding the use of non-governmental, private communication systems for conducting government business, particularly WhatsApp, Signal and private email accounts. The claimants argued that this was unlawful because it was incompatible with the duty in section 3(1) of the Public Records Act 1958 and amounted to an unjustified breach of policy. The court disagreed. It held that the use by ministers and other central government officials of private email accounts and instant messaging platforms on private devices to conduct government business was not unlawful. It also found that the use of auto-delete functions was lawful.

The Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 published

On 9 May 2022, the Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 (SI 2022/516) was laid before Parliament. This will replace the retained EU Vertical Agreements Block Exemption on 1 June 2022. It gives effect to the Competition and Markets Authority’s recommendation that certain vertical agreements (as defined in the Order) constitute a category of agreements which are likely to be exempt agreements dur to section 9 of the Act. Agreements which fall within the category specified in the block exemption Order are exempt from the prohibition in Chapter 1 of the Act. The recommendation was made by the CMA following consultation under section 8(1) of the Act. The block exemption applies to such agreements to the extent that they fall within the scope of section 2 of the Act (agreements etc. preventing, restricting or distorting competition (the Chapter 1 prohibition)). It will cease to have effect on 1st June 2028.

Phase 2 referral of the proposed acquisition of the Perpetuus Group by Shanghai Kington Technologies and others

Business Secretary Kwasi Kwarteng has written to the Competition and Markets Authority instructing them to carry out an in-depth Phase 2 investigation of the proposed acquisition of the Perpetuus Group by Shanghai Kington Technologies and others on national security grounds. The Business Secretary has “quasi-judicial” powers under the Enterprise Act 2002 to intervene in certain mergers on public interest grounds. The decision follows the completion of the Phase 1 process during which the CMA conducted an initial investigation of the potential competition implications of the transaction. The CMA considered that it does not believe that it is or may be the case that the transaction may be expected to result in a substantial lessening of competition within a market or markets in the UK. Following the consideration of evidence gathered from departments across government, the Business Secretary deems that the interest of national security continues to be relevant and should be subject to further investigation. Perpetuus Group is a group of UK companies which is active in the functionalisation of graphene and other nanomaterials, which have a range of strategic applications. The government will ensure the implications of the transaction are fully considered. The CMA will report to the Business Secretary.

DCMS Committee launches new inquiry: Connected tech: smart or sinister?

The DCMS Committee is examining the impacts of the increasing prevalence of smart and connected technology and what needs to be done to ensure it is safe and secure for its users. It is inviting written evidence on the following questions by Thursday 23 June: What has been or will be the most important impacts of increasingly prevalent smart and connected technology in our lives, including in the home, in the workplace and in our towns and cities, and are they necessarily better than current systems? Are there any groups in society who may particularly benefit from or be vulnerable to the increasing prevalence of smart technology, such as young or elderly people, people with disabilities and people likely to be digitally excluded? What incentives and encouragement can be provided for design that is safe, secure, environmentally- and user-friendly and compliant with human rights laws? What are the key short- and long-term risks and threats, and how can society ensure the devices, systems and networks of individuals, businesses and organisations are digitally-literate and cyber secure? How will current geopolitical concerns influence domestic consumers, eg regarding standards of imported goods or how cyber threats are dealt with? Do existing frameworks, like data protection legislation and the Public Security and Telecommunications Infrastructure Bill, adequately address concerns with smart technology, and if not, how could they be changed?

EU law

European Commission adopts updated Vertical Block Exemption Regulation

The European Commission has adopted the new Vertical Block Exemption Regulation (VBER) accompanied by the new Vertical Guidelines, following evaluation and review of the 2010 rules. The revised rules provide businesses with simpler, clearer and up-to-date rules and guidance. The new rules aim to help them to assess the compatibility of their supply and distribution agreements with EU competition rules in a business environment reshaped by the growth of e-commerce and online sales. The revised VBER and Vertical Guidelines will enter into force on 1 June 2022.

European Parliament adopts recommendation that EU should set global AI standards

The European Parliament has adopted the final recommendations of the Special Committee on Artificial Intelligence in a Digital Age (AIDA).  It states that the debate on the use of AI should focus on the technology’s potential to complement human labour. AIDA says that the EU needs to be the global standard-setter in AI, identifying policy options that could unlock AI’s potential such as health, environment and climate change. Like-minded democracies should work together to jointly shape this international debate. The report also stresses that AI technologies could pose important ethical and legal questions, and voices concerns about military research and technological developments into lethal autonomous weapon systems. The European Parliament points out that certain AI technologies enable the automation of information processing at an unprecedented scale, paving the way for potential mass surveillance and other unlawful interference in fundamental rights. MEPs warn that authoritarian regimes can apply AI systems to control, exert mass surveillance and rank their citizens or restrict freedom of movement, while dominant tech platforms use AI to obtain more personal information. For MEPs, this profiling poses risks to democratic systems. The report will feed into upcoming parliamentary work on AI, in particular the AI Act, which is to be voted on in late September.

European Commission proposes regulation to fight child sexual abuse online

The European Commission has proposed a new regulation to prevent and combat child sexual abuse online. Those rules will include mandatory risk assessment and risk mitigation measures; targeted detection obligations, based on a detection order; safeguards on detection; clear reporting obligations - providers that have detected online child sexual abuse will have to report it to the EU Centre; effective removal; reducing exposure to grooming: and robust oversight mechanisms and judicial redress. It is now for the European Parliament and the Council to agree on the proposal. Once adopted, the new Regulation will replace the current interim Regulation. The Commission has also adopted a new European strategy for a Better Internet for Kids (BIK+), to improve age-appropriate digital services and to ensure that every child is protected, empowered and respected online.

EDPB issues Annual Report

The EDPB has issued its Annual Report. Firstly, the EDPB continued to pay a great deal of attention to international transfers of personal data. It has also been involved in digital policy. A third priority area is law enforcement. It has also published various guidance notes. Another priority area is enforcing the GDPR. In the coming year it says that it will continue to develop guidance to help stakeholders understand and interpret the GDPR. Its goals for 2022 include work on guidance on topics as varied as legitimate interest as a legal basis and the use of facial recognition by law enforcement authorities.

Published: 2022-05-13T13:00:00

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