The draft ePrivacy Regulation has been trundling through the EU legislative bodies for the past couple of years, and is making some progress. On 4 October 2019 the European Council issued a revised draft of the Regulation, which is still subject to change.

The Regulation was initially due to come into force at the same time as the GDPR, and is intended to complement the GDPR and relate to electronic communications specifically. However inconsistencies with the GDPR and unanswered questions around parts of the draft have created uncertainty.

We consider some of the key differences between the revised draft and the current legislation below.
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In a landmark ruling last week, the Court of Justice of the European Union (CJEU) has held that Google is not required to carry out a de-referencing (effectively, the “right to be forgotten”) on non-EU versions of its search engine.

The case was brought by Google on appeal, having received an initial fine of €100,000 from the French data protection regulator, CNIL, back in 2016 after it had ruled that Google’s self-imposed restriction to only de-reference on European versions of its search engine (as opposed to its global platforms) was unlawful.

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On 7 June 2019 a  European Directive came into force amending the 1993 ‘Cable and Satellite’ Directive. Its effect was to:

  • extend the EEA ‘country of origin’ rights clearance principle to a limited set of online broadcast and catch-up services;
  • extend the mandatory collective rights management of retransmission from cable distribution to all forms of retransmission; and
  • provide statutory clarification of the legal treatment of ‘direct injection’.

What is the reasoning behind the reform?

In an ever growing digital world, consumers are moving away from their traditional satellite or cable radio and television sets in favour of online television and radio content. This  trend left the 1993 Directive (which only facilitates cross-border cable and satellite broadcasting) outdated.

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The scope of the EU Digital Copyright Directive approved this week by European Parliament is broad. With most media attention having been devoted to the controversial “link tax” (Article 15) and “meme ban” (Article 17), other measures in the Directive which strengthen the position of authors and performers should not be forgotten. This post looks ‘behind the headlines’ to explain these other measures.

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On 26 March 2019, the European Parliament approved the EU Copyright Directive.

What happens next?

Member states will have two years to implement the directive at a national level once adopted.

The news will not please the large online content aggregators which have been extensively lobbying against the implementation of the Copyright Directive. The controversial Article 17 (the so-called “Meme Ban”) has been one of the main reasons for the aggregators’ objections because it is argued that Article 13 encourages censorship and impedes internet freedom.

For an overview of the also controversial so called ‘Link Tax’ (Article 15) see our prior blog post.

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On 26 March 2019, the European Parliament approved the EU Copyright Directive.

Article 15 (originally 11) of the revised EU Copyright directive prohibits online content providers from linking to news outlets/publications without the prior authority of the publisher – the so called “Link Tax”. This means that for an online content provider to be able to link to a news article on their site, it will need a licence from the publisher. It may also need to pay for the right to use the article (unless the publisher waives this right).

What is the aim behind Article 15?

Article 15 improves the bargaining position for publishers. Currently, online content providers are permitted to freely link to news articles on their websites without the publisher’s prior consent and without providing remuneration to the publisher for use of its publication. Article 15 seeks to level the playing field between publishers and online content providers. Publishers will become entitled to negotiate fair licensing agreements and remuneration for use of their works online.

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On 26 March 2019 the European Parliament approved the draft EU Copyright in the Digital Single Market Directive. The copyright reforms have sparked large scale controversy amongst the tech giant community, condemning the reforms as impractical and burdensome. Whereas many (not all) authors and members of the performing artist industry have welcomed such proposals, favouring fairer protection and remuneration for their works. The Directive came into force on  6 June 2019 and Member States have until 7 June 2021 to transpose the Directive into national law.

What is the purpose of the Directive?

Digital technology has changed the way content is reproduced and accessed. Content is now largely accessed via online platforms such as Google, YouTube or Facebook. The aim of the Copyright Directive is to modernise the current copyright rules in line with an ever growing digital world where content is predominately accessed online.

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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.
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