2014 Internet and ECommerce Law Update

1. Internet and eCommerce
Review 2014
Bird & Bird Annual IT Law Update
London, 22 October 2014
Graham Smith
Partner, Bird & Bird LLP
@cyberleagle

2. Last year’s “looking forward to...”
● Digital Economy Act – will the rightsowners pay up?
● Defamation Act 2013 – coming into force
● Hargreaves – copyright exceptions
● Blocking orders – Constantin Films v UPC (CJEU)
● EU 'Notice and action' project
● Copyright and linking – Svensson, C More, Bestwater
(CJEU)
● Copyright jurisdiction – Pez Hejduk (CJEU)
● Copyright distribution right - territoriality – Blomqvist
(CJEU)
● ECommerce Directive – internal market, intermediary
liability, ISS – Papasavvas (CJEU)
● Database right – metasearch – Innoweb (CJEU)
● Meltwater (PRCA) - CJEU

3. Review of 2014
Copyright, trade marks and the internet
Metasearch and database right
Cross-border internet liability
RIPA, DRIPA and friends
Farewell to the Distance Selling Regulations

4. Copyright, trade marks and the internet
Browsing – Meltwater (PRCA)

5. NLA v PRCA (CJEU, June 2014)
Copyright: do user's browser copies infringe?
● Article 5.1, EU Information Society Copyright Directive
● "Temporary acts of reproduction … , which are transient or
incidental [and] an integral and essential part of a technological
process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an
intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which
have no independent economic significance."
● Recital (33): "To the extent that they meet these conditions, this
exception should include acts which enable browsing as
well as acts of caching to take place"

6. NLA v PRCA
UK Supreme Court: no infringement – subject to CJEU reference
“It has never been an infringement, in either English or EU
law, for a person merely to view or read an infringing article
in physical form.”
● Browsing/viewing v download
CJEU: no infringement
● Screen copy: temporary and transient
• Transient ≠ fleeting
“transient if its duration is limited to what is necessary
for the technical process concerned to work properly”
● Browser cache: temporary and incidental
“did not exist independently of nor have an independent
purpose outside of internet browsing.”

7. Copyright, trade marks and the internet
Site blocking injunctions

8. Site blocking injunctions
Constantin Films v UPC Telekabel CJEU March 2014
● Art 8(3) Copyright Infosoc Directive
• Court can grant injunction against intermediary where
services used by a third party to infringe copyright
● Confirmed target website ‘uses’ service of user’s ISP
● Proportionality
• Costs v ease of circumvention
- “prevent or make difficult to achieve”; “seriously
discourage” the infringement
• Collateral impact on legitimate activities
- “do not unnecessarily deprive internet users of possibility
of lawfully accessing information” “strictly targeted …
without thereby affecting internet users who … lawfully
access information”
● Transparency
• Possibility for internet users to assert rights before the court

9. Site blocking injunctions
Cartier et al v BSkyB et al Ch.D, Arnold J (17 October 2014)
● Websites selling counterfeit Cartier merchandise
● Art 11 EU Enforcement Directive
• Court can grant injunction against intermediary where services used
by a third party to infringe an IP right
• Not specificially implemented in UK legislation
● Jurisdiction to grant injunction re trade mark rights
• Satisfied ‘provided for by law’ test
• Same threshold conditions as for copyright S97A
• Use of service: UK-targeted website/online contract of sale
● Claimants not required instead to pursue site operators or use
notice and takedown, payment freezing, domain name seizure,
de-indexing or customs seizure
● Proportionate
• But IP address sharing
● Safeguards (ORG): subscribers able to apply to vary/discharge,
blocking page info, sunset clause.

10. Metasearch and database right

11. Metasearch and database right
Innoweb v Wegener CJEU 19 December 2013
● GasPedaal meta search engine
● Dedicated to car ads; searched across several sites including
Wegener’s AutoTrack
• Search form offering essentially the same range of
functionality as Autotrack search form
• formatted and relayed user queries in real time to Autotrack
search facilities, then aggregated and displayed results.
• presented results to the end user in an order that reflected
criteria comparable to those used by the Autotrack site
search engine for presenting results
● Database right infringement by making AutoTrack database
available to the public without its consent
● Innoweb’s purpose was to provide access to entire contents of
database by a means other than that intended by the database
maker.

12. Cross-border internet liability
Google Spain (CJEU)
Vidal-Hall v Google (High Court)

13. Cross-border internet liability
Google Spain CJEU (13 May 2014)
● Territorial scope of data protection legislation
● Google Inc and Google Spain both parties
• “the processing is carried out in the context of the activities
of an establishment of the controller on the territory of the
Member State”; or, if not established (Art 4(1)(a))
● Subsidiary can be an establishment of the parent (Recital 19)
● Google Inc search activities are processing by controller
● Google Inc search is ‘in context of activities’ of Google Spain
advertising support
• ‘inextricably linked’

14. Cross-border internet liability
Vidal-Hall v Google Inc (16 Jan 2014)
● Targeted advertising based on internet usage data collected
(historically) from Safari browser users
● Challenge to jurisdiction over allegations of (inter alia) misuse
of private information
● Distress and anxiety is damage within jurisdiction
● (obiter) visibility of ads was an act of publication to
claimants/others, effected within jurisdiction (+ collection?)
• Information that may have been apparent from screens
included private information

15. RIPA, DRIPA and friends

16. RIPA, DRIPA and friends
Prologue – Digital Rights Ireland CJEU 8 April 2014
● Invalidated EU Data Retention Directive on privacy grounds
● Contrary to Art 7 (&8) EU Charter of Fundamental Rights
● CSPs required to retain various traffic, service usage and
subscriber data
● Validity of Data Retention Regs 2009 made under ECA 1972?
3 months later…
● Data Retention and Investigatory Powers Act 2014
• Tailored notices to CSPs up to 12 months
• RIPA definitions of telecommunications services
• Non-UK providers and conduct for interception warrants, capability
and communications data notices
• Conflict of laws interception warrants defence for non-UK providers
• RIPA definitions amended to ensure covers e.g. webmail
- Includes cloud storage facilitation

17. “The bill clarifies how the
current definition should be
interpreted, but this cannot
change or extend the meaning of
the definition in RIPA to capture
new services”
The Home Office, quoted
in The Sunday Times 13
July 2014

18. ‘The lawyer Graham Smith says
that this is “twaddle” ’
Baroness Helena Kennedy,
Hansard, 16 July 2014

19. RIPA, DRIPA and friends
Epilogue
● Parliamentary Intelligence and Security Committee Privacy and
Security Inquiry
● RUSI Review on the Use of Internet Data for Surveillance
Purposes
● @terrorwatchdog Review of Investigatory Powers
● IOCCO investigation into police use of communications data
powers to reveal journalists’ sources
● Various legal challenges
• Investigatory Powers Tribunal cases (TEMPORA and PRISM)
• Big Brother Watch ECtHR
• Tom Watson MP/David Davis MP judicial review of S.1
DRIPA
• Bureau of Investigative Journalism ECtHR

21. RIP the Distance Selling Regulations

22. RIP the Distance Selling Regulations
The Consumer Contracts etc Regulations 2013 (w.e.f. 13 June 2014)
● EU Consumer Rights Directive - distance contracts
● Cancellation period 14 calendar days (NB downloads)
● Pre-contract information
• Digital content “functionality, including applicable technical
protection measures” “relevant compatibility with hardware
and software”
• Button “order with obligation to pay” or corresponding
unambiguous formulation (e.g. Pay Now).
● Post-contract confirmation in durable medium (defined)
• E-mail, paper, personally addressed and accessible storage
long enough for purposes of information
● Post-contract phone queries – basic rate
● ess

23. Looking forward to...
● Online R18 legislation (AVMS Regulations 2014)
● Consumer Rights Act
● The continuing saga of RIPA/DRIPA
● Copyright and linking – C More, Bestwater (CJEU)
● Online copyright jurisdiction – Pez Hejduk (CJEU)
● EU copyright review
● Social media offences
• Malicious Communications Act 1988
• Revenge porn offence?
● eIDAS Regulation (in force 2016)
• electronic signatures, electronic seals, time stamp, electronic delivery
service, website authentication

24. Graham Smith
graham.smith@twobirds.com
@cyberleagle
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Thank you