This Week's Techlaw News Round-Up

Supreme Court rules that newspapers do not include digital editions for VAT purposes, Ofcom consults on regulation of advertising of less healthy food and drink, Independent review of the Investigatory Powers Act 2016 announced and other UK and EU techlaw news from the past week not covered elsewhere on the SCL website.

UK law

Supreme Court rules that newspapers do not include digital editions for VAT purposes

The Supreme Court has published its ruling in the case of News Corp UK & Ireland Ltd (Appellant) v Commissioners for his Majesty's Revenue and Customs (Respondent) [2023] UKSC 7. It considered if the Court of Appeal erred in finding that News Corp's supplies of digital issues of The Times, The Sunday Times, The Sun and The Sun on Sunday were not supplies of "newspapers" under the Value Added Tax Act 1994 such that they could not be zero-rated for Value Added Tax during the relevant period. News Corp argued that the digital editions of these publications were subject to zero-rate VAT as they are "newspapers" under the VAT Act. HMRC found that News Corp was not entitled to zero-rate the supply of these digital editions. News Corp appealed. The First-Tier Tribunal found that digital editions are not "newspapers" under the VAT Act, and so rejected News Corp's claim for recovery of over £35 million. The Upper Tribunal allowed News Corp's subsequent appeal. HMRC appealed to the Court of Appeal, which allowed its appeal. After this long process, the Supreme Court has now ruled that the term "newspapers" in Item 2, Group 3, Schedule 8 of the VAT Act does not include the digital editions, with the result that the supplies of the digital editions by News Corp during the relevant period were not zero-rated. The law changed from 1 May 2020, so this was a historic claim, but one that will be expensive for News Corp.

Ofcom consults on regulation of advertising of less healthy food and drink

Ofcom is consulting on its proposed approach to implementing new restrictions on advertising for less healthy food and drink products, which have been introduced through the Heath and Care Act 2022. On 28 April 2022, the Health and Care Act received Royal Assent. Amongst other things, it amended the Communications Act 2003 to introduce new restrictions on advertising and sponsorship for certain food and drink products that are high in fat, salt or sugar. The new restrictions apply to advertising on Ofcom-regulated TV and on-demand programme services, as well as online. In summary, TV services and ODPS are prohibited from including advertising and sponsorship for less healthy food and drink products between 5:30am and 9:00pm; and paid-for advertisements for these products, where they are aimed at UK users, are prohibited from being placed online at any time. Under the 2003 Act (as amended), both sets of restrictions take effect from 1 October 2025. Under the 2003 Act, Ofcom is the statutory regulator with responsibility for advertising on TV and ODPS, for which it has established co-regulatory relationships with the ASA, BCAP and the Broadcasting Standards Board of Finance. The 2003 Act as amended also gives Ofcom responsibility for regulating online advertising for less healthy food and drink products, with the power to designate a co-regulator. Ofcom is consulting on proposed amendments to the BCAP Code and it intends to direct BCAP to implement the necessary amendments to the BCAP Code. Ofcom is also consulting on a proposal to designate the ASA as a co-regulator for the new prohibition on online advertising for less healthy food and drink products. The consultation ends on 21 April 2023.

Independent review of The Investigatory Powers Act 2016 announced

An independent review of the Investigatory Powers Act 2016 has been announced by the UK government. The Investigatory Powers Act provides a frame work for the use of investigatory powers by the security and intelligence agencies, law enforcement and other public authorities. These powers cover: the interception of communications; the retention and acquisition of communications data; equipment interference for obtaining communications and other data and the retention and examination of bulk personal datasets. The aim of the review is to consider the priority areas for change to the Investigatory Powers Act 2016 identified as part of the cross-government internal strategic review to inform a potential legislative reform package to be brought forward as soon as parliamentary time allows. The Home Office has also published its statutory report on the operation of the Investigatory Powers Act 2016 under section 260(4)(b) of the Act. The purpose of the report is to assess, as far as possible, the extent to which the objectives of the Act continue to be met and whether any changes are required to ensure that it remains fit for purpose.

Impress launches new Standards Code to tackle challenges of modern journalism

The Impress Standards Code has been published to support journalists and protect the public from unethical reporting and practices. It apples to all forms of news delivery, including print publications, news websites and social media. Impress says that the Code reflects international best practice in the gathering and publishing of news content and is regularly updated to remain relevant in an ever-changing digital world. The purpose of the Code is to help journalists create high-quality work in the public interest, balanced with respect for the rights and interests of everyone involved. It is not intended to restrict freedom of expression. It includes guidance about AI and emerging technologies, tougher measures on tackling misinformation, bolstering safeguarding guidelines, lowering Impress' discrimination threshold, and ensuring publications are held to account when the Code is breached.

EU law

European Commission consults on its implementing regulation and enforcement rules regarding DSA

The European Commission is seeking views on its implementing regulation regarding the Digital Services Act. The DSA provides the Commission with the power to adopt implementing acts detailing arrangements on issues highlighted in Article 83 of the DSA, such as the proceedings in Articles 69-72 regulating aspects of the Commission's investigatory and enforcement powers, the hearings in Article 79 and the negotiated disclosure of information provided for in Article 79. The implementing regulation will set out rules on all procedural practical arrangements in Article 83 of DSA. The consultation ends on 16 March 2023.

EDPB publishes work programme for 2023-2024

The EDPB has adopted its new work programme, setting out its priorities and putting the Board's strategic objectives into practice. The EDPB says that it will continue to prioritise enforcement building initiatives such as the Coordinated Enforcement Framework, cases of strategic importance, and the Support Pool of Experts. In addition, the EDPB will keep developing guidance to support and encourage data protection authorities to use the full range of cooperation tools at their disposal, such as on the mutual assistance duty. Furthermore, the EDPB plans to add to its existing catalogue of data protection documents and continue its core work on harmonising and facilitating compliance. Among other things, the EDPB will aim to ensure consistency of decisions by national data protection authorities by using binding decisions under Article 65 GDPR and to advise the EU legislator on data protection related matters, such as on adequacy decisions. In addition, the EDPB will provide further guidance and develop awareness-raising tools on the GDPR for a wider audience. In addition, the EDPB intends to develop new guidance, such as on the interplay between the proposed AI Act and the GDPR and on the use of social media by public bodies.

Published: 2023-02-24T11:10:00

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