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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Europe’s highest court has decided that Internet intermediaries can be ordered to remove illegal content on a global basis.

What’s the background?

The Court of Justice of the European Union (CJEU) held in Glawischnig-Piesczek, C-18/18 that online platforms, such as Facebook, can be ordered to remove “identical and, in certain circumstances, equivalent” comments that have been previously declared by national courts to be illegal and that such orders can be effected on a worldwide basis.

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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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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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Thousands of European and US companies will have been relieved by the recent announcement that the EU-US Privacy Shield (the framework for regulating transatlantic exchanges of personal data) is secure for another year.

However, it may be premature to rejoice: the EU Commission’s review highlighted two key issues:

  1. the continued reluctance by the US to institute fundamental safeguards for individuals’ personal data; and
  2. the imminent need to appoint an independent ombudsman.

Coupled with the impending European court ruling in Schrems II – is the Privacy Shield’s demise only a matter of time?

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In today’s judgment, the UK Supreme Court held that rights-holders should bear the costs of implementing website blocking injunctions to prevent IP infringement. The judgment overturns the practice adopted by the English courts since 2011 of requiring internet service providers, as innocent intermediaries, to bear these costs.

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