This Week’s Techlaw News Round-up

May 17, 2024

UK law

Artificial Intelligence (Regulation) Bill

The Bill received its third reading in the House of Lords on 10 May 2024. The Bill now goes to the Commons for consideration. Its key focus is to establish a framework for the regulation of AI in the UK, including placing AI regulatory principles on a statutory footing and establishing a central AI Authority to oversee the regulatory approach to AI. Labour have said that if they win the next election they will legislate on AI – it remains to be seen if this Bill goes any further in the legislative process.

First-tier Tribunal ruling on Join the Triboo appeal

The First Tier Tribunal has issued its ruling on an appeal against the ICO from Join the Triboo Limited, an online recruitment firm. It appealed a fine of £130,000 and an enforcement notice issued by the ICO in April 2023 for sending 107 million spam emails to over 400,000 people without their consent between August 2019 and August 2020. In its judgment, the Tribunal dismissed the appeal against the fine and upheld the penalty amount of £130,000. The Tribunal found that Join the Triboo’s privacy policy was “poorly signposted”, and that registration alone could not be treated as consent to direct marketing. Join the Triboo must now provide current consent statements and privacy policies for the Tribunal to consider before it makes its decision on whether the enforcement notice should be upheld. The ruling follows a hearing that took place in March 2024.

Patents Court considers scope of FRAND licence and termination of obligation of full and frank disclosure

In Lenovo Group Ltd and others v InterDigital Technology Corporation and others (Re Applications) [2024] EWHC 1036 (Pat) the Patent Court considered a new phase of the continuing litigation between InterDigital and Lenovo about a licence for Standard Essential Patents (SEPs) Lenovo had obtained leave to serve out on InterDigital. InterDigital applied to have the service out set aside. It said that Lenovo’s statement of claim appeared to include a claim to a FRAND licence which would cover non-SEP patents (Portfolio Licence). Interdigital said this lacked merit as it had no legal obligation to grant such a licence. The court said that InterDigital has made several detailed criticisms of drafting of the pleadings, but many of those were just drafting criticisms that overlooked the fact that the pleading as a whole disclosed a claim for a Portfolio Licence which had a reasonable prospect of success. The court rejected the argument that a claim for a Portfolio Licence failed the merits test. Interdigital also argued that the application to serve out lacked the required full and fair disclosure but the court said that while Lenovo could be criticised for not notifying the court of the relevant breaches earlier than it did, it did not agree that the appropriate sanction was to set aside the order for service out.

Ofcom secures better protections for children on Twitch

Ofcom has said that children in the UK will be better protected from harmful videos on Twitch after it raised concerns about its online safety measures, in particular to protect under-18s from harmful video content. Twitch requires its users to label content that may have mature content such as sexual themes, gambling, drugs, intoxication, excessive tobacco use and violent or graphic depictions. However, Ofcom was concerned that Twitch was not doing enough to prevent children from accessing videos labelled as containing such content. It has now made changes to the content available on its homepage, as well as introducing several protection measures to stop children accessing harmful content. These include: preventing all viewers in the UK who are either logged-out (and whose age would therefore be unknown), or logged-in and declared as under 18, from accessing content labelled with sexual themes or gambling; removing content tagged with sexual themes, gambling, drugs, intoxication or excessive tobacco use and violent and graphic depictions from the Twitch homepage; and adding a new section to Twitch’s Guide for Parents and Educators about content classification labelling, which aims to help adults to make informed decisions about the types of content children can watch on the platform. Ofcom will continue to monitor the platform to assess whether these changes are effective to protect under-18s from harmful material. In addition, it will publish a series of reports on evaluating the effectiveness of online safety measures later in the summer. Before the Online Safety Act comes into force, video-sharing platforms (VSPs) established in the UK are required to take appropriate measures to prevent under-18s from accessing pornography and other harmful material, under existing regulations. Once the VSP regime is repealed by the UK Government, platforms will have to comply with a broader set of duties under the new online safety regime.

UK government consults on new codes on AI models and cybersecurity

The UK government has called for views on two new codes of practice aimed at helping developers improve cyber security in AI models and software, aimed at putting the UK economy on a stronger footing to grow safely and helping the government achieve long term growth for the British economy. The codes set out requirements for developers to make their products resilient against tampering, hacking, and sabotage and are aimed at boosting confidence in the use of AI models across most industries. In the last 12 months, half of businesses (50%) and a third of charities (32%) reported cyber breaches or attacks, and phishing remained the most common type of breach. The calls for evidence end on 10 June 2024.

ASA and CAP publish research and guidance on podcast ad clarity

The Advertising Standards Authority and the Committee of Advertising Practice have published a consumer research report about advertising in podcasts. Following the report, they have also issued guidance about how brands and publishers can ensure ads read by podcast hosts and content creators are clearly identifiable as ads to their audiences. CAP strongly advises using terms like “sponsored”, or “paid-for advertisements”, alongside musical or sound effect cues, to help listeners differentiate paid ads from the rest of the surrounding content. The guidance will take effect on 16 August 2024, after a three-month grace period.

EU law

European Commission designates Booking as a gatekeeper and investigates X under DMA

The European Commission has designated Booking as a gatekeeper under the Digital Markets Act, based on Booking’s self-assessment from 1 March 2024.  This is because Booking is a core platform service which acts as an important gateway between businesses and customers. The Commission has also opened a market investigation into X to further assess its rebuttal submitted on 1 March 2024 which argues that despite meeting the thresholds, X does not qualify as an important gateway between businesses and consumers. The investigation should be completed by October 2024.

European Commission services opens consultation on lighter liability regime under DSM Copyright Directive

The Commission services have launched a targeted consultation to gather information from the relevant stakeholders on the application and impacts of the specific liability regime set out in Article 17(6) of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market. Article 17 of the Directive introduced rules for online content-sharing services providers for the content uploaded by their users. Article 17(6) sets out a lighter regime for service providers available to the public in the EU for less than three years and with a turnover below EUR 10 million. The consultation is part of the Commission’s assessment of the lighter liability regime provided in Article 17(6), as required under Article 30(1) of the Directive. The consultation ends on 7 June 2024.

Viagogo commits to improving terms and consumer information after dialogue with Commission

Following a dialogue with the European Commission and the member state national consumer authorities, Viagogo, online marketplace for the second-hand sale of event tickets, has committed to better inform consumers about the conditions under which tickets are resold and to stop pressuring consumers with excessive countdown messages in its role as trader. The Commission and national consumer authorities had received multiple complaints concerning Viagogo’s website, such as the lack of clear information on taxes and fees that must be paid by consumers, which Viagogo now committed to address. However, there are aspects which Viagogo has not agreed, so enforcement action may still follow.