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 Whilst some proposals were withdrawn or watered down, a number of important provisions, notably reform of the UK’s electronic communications code which governs the relationship between telecoms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.
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.
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.
In 2015, the European Commission published a study (written by IDC) which provides an overview of Europe’s IoT digital ecosystem, its current status and anticipates a suggested vision of the same ecosystem in 2020. That study found:
The IoT (Internet of Things) is a pervasive innovative technology building on the universal connectivity of things and people, now moving in Europe from the pioneer phase to widespread adoption. In combination with cloud computing and Big Data the IoT is opening the new age of the hyper-connected society and acting as a powerful driver of business innovation, but also facing equally strong barriers in terms of security risks, concerns about privacy protection, and resistance to organizational change.”
On 30 March 2017, Ofcom, the UK’s communications regulator, published its annual plan for financial year 2017/18. It also published its budget and work programme for the year. The changes identified by Ofcom in relation to its responsibilities, markets and technology and the legislative framework under which it operates provide a great snapshot of current industry trends and issues.
Taking these in turn:
On 30 March 2017, the UK’s Department for exiting the European Union published a white paper outlining its proposals for a Great Repeal Bill (GRB). Whilst superficially, this appears to bring clarity to the legal position after Brexit, on closer examination the GRB proposal over-simplifies the position and glosses over the very significant legislative (and consequential business) problems that will arise from the UK’s departure from the EU in the absence of a comprehensive and detailed free trade agreement between the UK and EU to enable many of the existing business arrangements to continue. Whilst much of the press commentary has focused on the impact of Brexit on the financial services sector, the same issue, disruption of existing business models as a result of leaving the single market, arises in almost every other sector of the economy, and certainly in the telecoms, media and technology sectors.
During the 1920s, the BBC’s first General Manager, John Reith set the BBC’s mission as being to:
inform, educate and entertain”.
Regular readers will be aware that current data protection (privacy) laws will be replaced in Europe by the new General Data Protection Regulation (or GDPR) from May 2018. This change is driving a lot of preparatory regulatory activity – see this article for a recent summary. Whilst the impact of Brexit on data protection law in the UK is not yet finally settled, the UK regulator ICO is proceeding on the basis that the GDPR (or something very like it) will take effect in the UK and as a result is starting to consult on implementation. Continue Reading UK’s Information Commissioner launches first consultation on GDPR implementation
Ofcom’s own guidelines for setting fines say that it will be transparent about how it weighs various factors to set the level of fines. However, recent decisions do not follow this practice. Should Ofcom change its practice and be be more transparent? Continue Reading Should Ofcom be more transparent about how it sets fines?
On 24 March 2017, Ofcom started a consultation on proposed template contract terms as well as a code of practice and template notices to be used with the revised UK Electronic Communications Code (Code). The Code provides a statutory backdrop for the relationship between infrastructure based telecoms operators and landowners, with a revised Code to be introduced as part of the UK’s Digital Economy Bill. The drafts being consulted on represent the output of extended engagement by Ofcom with stakeholders from both the landlord and operator communities. Once adopted, the template terms, notices and code will from the starting point for standard market practice, so any interested parties who have additional issues or comments should use this consultation as a means of having their views considered. As discussed in more detail below, the level of indemnity and liability caps in the standard wayleave template are likely to be of material interest to both operators and landlords. Continue Reading Ofcom consults on templates for telecoms operator – landowner contracts