This Week’s Techlaw News Round-up

June 14, 2024

UK law

CAT grants application to bring collective damages action by Ad Tech against Google for alleged abusive conduct

The Competition Appeal Tribunal has ruled in Ad Tech Collective Action LLP v Alphabet Inc. & Others. It granted the Proposed Class Representative’s (PCRs) application for a Collective Proceedings Order. Ad Tech Collective Action LLP claimed for loss and damage allegedly caused by the Proposed Defendants’ breach of statutory duty by their infringement of section 18 of the Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union. The PCR seeks to recover damages to compensate UK-domiciled publishers and publisher partners, for alleged harm in the form of lower revenues caused by the Proposed Defendants’ conduct in the ad tech sector. The CAT said that the Claim Form was properly pleaded, and set out a case that was arguable within the Merricks test. The PCR’s counterfactual case was sufficiently pleaded for Google to know the case it must meet. The PCR had, through the report of its expert economist, demonstrated that the averments in the Claim Form were triable and that the harm to the Proposed Class and the loss and damage suffered by it could be quantified. In relation to case management, the Tribunal held limitation issues should be dealt with as part of the main trial, rather than as questions of strike out. The Tribunal said that it would not oblige the PCR to change the provisions of its arrangements regarding legal representation. The issue raised by the Proposed Defendants regarding a potential conflict of interest within the Proposed Class was more effectively dealt with during proceedings, and when questions of distribution come to be considered.

Ofcom consults on renewing co-regulatory arrangements for ODPS and VSP

Ofcom has set out proposals to renew its co-regulatory arrangements with the Advertising Standards Authority for the regulation of broadcast, on demand and video sharing platform advertising. Under the current arrangements, the ASA acts as the frontline regulator and Ofcom provides a statutory backstop. Ofcom says that the longstanding co-regulatory system, which was first established in 2004, has been highly effective and reduces complexity to give consumers a single point of contact for advertising issues across all media. Ofcom proposes to renew the co-regulatory arrangements without significant changes for a further ten years. The ASA will continue to report details of investigations regularly and this information will be publicly available. The ASA will also continue to provide Ofcom with performance data about its case handling arrangements. The consultation ends on 19 July 2024 and Ofcom will publish its final decision in the autumn.

Patents Court refuses interim injunction in UK for losses from foreign litigation

In another judgment in the long-running Standard Essential Patents saga, the Patents Court has ruled in Motorola Mobility LLC and another v Ericsson Ltd and another [2024] EWHC 1267 (Ch). It refused to grant Lenovo an interim injunction in an action against Ericsson group member companies for infringement of a recently issued patent.  It said that damages were an adequate remedy for Lenovo and that the losses which Lenovo claimed arising from the injunctions in Brazil and Colombia were not losses which could, on any basis, be said to be caused by the infringement of the patent in suit or the alleged infringement of the patent in suit.

EU law

Council of the EU agrees position on GDPR enforcement rules

The Council has agreed a common member states’ position on a new law aiming to improve cooperation between national data protection authorities when they enforce the GDPR. The GDPR requires national data protection authorities to cooperate when a data protection case concerns cross-border processing. The draft regulation rwill provide tools to accelerate the process of handling cross-border complaints and any follow-up investigations. In particular, the regulation harmonises the requirements for a cross-border action to be admissible. The regulation also clarifies the procedural deadlines and procedural steps of an investigation and for the adoption of a binding opinion by the European Data Protection Board. The Council agreed that throughout the cooperation procedure, national data protection authorities should be able to provide their views to the lead supervisory authority and that cooperation tools in the GDPR should be used to aim at consensus early on in investigations. The new regulation will harmonise the requirements and procedures for the complainant to be heard if a complaint is rejected and provides common rules on the involvement of the complainant in the procedure. It also provides for the right to be heard for the company or organisation that is being investigated, including during dispute resolution by the EDPB. The general approach will allow the Council to start negotiations with the European Parliament, which has agreed its position in April 2024, to agree on a final legislative text.