On 14 September 2017 Ofcom, the UK communications industry regulator, adopted new statutory guidelines (“Penalty Guidelines“) on how it would assess and determine the penalties (fines) payable by regulated communications companies who breach their obligations under the Communications Act 2003 (“Act”). The revised guidelines follow Ofcom’s June 2017 adoption of new guidelines for enforcement in regulatory investigations (“Enforcement Guidelines“) and procedures for investigating breaches of competition related conditions in Broadcasting Act licences (“Broadcasting Investigation Procedures“).

Although on their face the changes to the guidelines seem relatively minor, when considered against the background of (i) Ofcom’s increasingly pro-active enforcement policy; and (ii) the increased difficulty of challenging Ofcom’s decisions, following the 20 July 2017 change in the standard of review of decisions on appeal from an ‘on the merits‘ review to ‘judicial review principles‘, we expect the changes to make it easier for Ofcom to take action against regulated communications companies and more difficult for those companies to defend and appeal Ofcom’s decisions. As a net result, regulated communications companies need to take Ofcom enforcement action more seriously. Those companies are now financially incentivised to engage early with Ofcom and consider early settlement to secure a settlement discount, especially as they will find it more difficult to challenge Ofcom’s decisions on appeal. Continue Reading What is the impact of the new Ofcom penalty guidelines?

Ofcom published its annual Communications Market Report this week. This report provides a reference for industry, stakeholders and consumers across the sectors Ofcom regulates.  A handy bite-size version of the report is available here.

What has the 2017 report revealed? Continue Reading A nation of binge-watchers: Ofcom reveals the UK’s TV and online habits in its annual report

This week heralded further progress for the European Digital Single Market strategy, with the online content portability regulation mentioned previously on this blog coming into force on 20 July 2017, following publication of this regulation in the EU Official Journal on 30 June 2017. The regulation itself sets out a number of key dates during next year and onwards for content providers and consumers alike to watch for. Continue Reading ‘Watch like at home’: dates worth watching for

In a judgment delivered on 14 June 2017, the Court of Justice of the European Union (CJEU) decided that making available a online sharing platform falls within the concept of “communication to the public” for the purposes of copyright law, and can therefore amount to infringement of copyright in protected works which are shared via that platform. This decision bolsters the ability of copyright owners to pursue the operators of such platforms, and to obtain relief against intermediaries (in particular ISPs) forcing them to block their users from accessing such platforms.

The immediate practical consequence of the CJEU’s decision is that the national courts are entitled to grant blocking injunctions against ISPs in order to block users from accessing TPB. This is plainly a positive outcome from the point of view of copyright holders, giving them stronger rights to restrict unauthorised distribution of their protected works. The generally pro-rightsholder approach of the CJEU in this case mirrors the recent efforts of the English courts to modernise its remedies in order to secure adequate protection against infringing activities, as reported in a previous blog post.

Continue Reading Providing an online sharing platform is an “act of communication”, says the CJEU

On June 8, 2017, The European Council adopted the Regulation on cross-border portability of online content services. The regulation will allow consumers who have paid for online content services in their home country to access those services when visiting another country within the EU. Alongside the ‘Roam like at home’ rules which came into force yesterday, the regulation forms part of the European Digital Single market strategy. The regulation will come into effect in the first quarter of 2018. Continue Reading ‘Watch like at home?’: Europe adopts online content portability rules

On May 23, 2017, the United States Federal Communications Commission (FCC) released the text of a Notice of Proposed Rule Making (NPRM) that solicits public comment on what FCC Chairman Ajit Pai calls a plan for “Restoring Internet Freedom.” The NPRM contemplates reversing the 2015 FCC Open Internet Order that classified both fixed and mobile broadband internet access services as telecommunications services and subjected them to some of the common carrier regulations found in Title II of the Communications Act. The 2015 Order also adopted no-blocking, no-throttling, and no-paid-prioritization rules, as well as a general internet conduct standard. Continue Reading American Federal Communication Commission Publishes NPRM Geared Towards Reversing Open Internet Order

On 10 May 2017, the European Commission published its mid-term review of the implementation of Europe’s Digital Single Market strategy. Launched in 2015, the ambitious strategy covered 16 actions under the three pillars: (1) improving access to digital goods and services for consumers and businesses across Europe; (2) creating the right conditions and a level playing field for digital networks and innovative services to flourish; and (3) maximising the growth potential of the digital economy. Despite a lot of activity, the Commission was only able to highlight one actual delivered improvement in its review – the abolition of retail roaming charges – although it looks forward to the imminent implementation of cross-border content portability in early 2018 and the expected approval of a proposal to address unjustified geo-blocking.

Continue Reading European Digital Single Market strategy mid-term review: What happens next?

On 27 April 2017, the UK’s new Digital Economy Act came into force. Following the calling of a snap General Election for 8 June, it was brought into force during the final parliamentary wash-up. Whilst some proposals were withdrawn or watered down, a number of important provisions, notably reform of the UK’s electronic communications code which governs the relationship between telecoms operators and landowners, were brought into force without significant amendment.

Continue Reading UK’s Digital Economy Act comes into force reforming telecoms operators’ rights to access land and buildings

In January 2017, the European Commission published the proposed text of a new draft e-Privacy Regulation (ePR) as part of its ongoing drive to advance one of its key initiatives, the Digital Single Market.

Whilst the impending introduction of the GDPR has been dominating headlines for the past months, the ePR has somewhat gone under the radar. We set out the key points to look out for with regard to the ePR and who it is likely to apply to.

Continue Reading The ePrivacy Regulation: what you need to know

On 8 March 2017, Mr Justice Arnold sitting in the English High Court granted in favour of The Football Association Premier League Limited (“FAPL”) the country’s first “live” blocking order, requiring internet service providers (“ISPs”) to block, in real-time, servers hosting unauthorised live streams of Premier League football matches. The landscape of technology used by infringers has evolved significantly in recent times. Infringers now often make content available directly to enabled devices rather than via a specific website. This evolution from previous forms of blocking order demonstrates how the English courts are prepared to evolve their thinking in order to track advances in the ways that people seek to infringe IP rights, and is a positive sign for rightsholders.

Continue Reading Combating unauthorised live streaming: a strengthened armoury for rightsholders