The document summarizes key developments in internet and e-commerce law from 2015, including the implementation of the Consumer Rights Act which established new rights and remedies for digital content. It discusses format shifting and personal copies for private use, online intermediary liability regarding site blocking injunctions, cross-border copyright jurisdiction, and the continuing issues around RIPA, DRIPA, and the proposed Investigatory Powers Bill regarding bulk data interception and communications retention. It concludes by looking forward to developments in 2016 regarding copyright, online regulation, and the EU Digital Single Market review.

1. Internet and eCommerce
Review 2015
Bird & Bird Annual TechLaw Update
London, 20 October 2015
Graham Smith
Partner, Bird & Bird LLP
@cyberleagle

2. ● 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
Last year's "looking forward to..."

3. Review of 2015
Supply of digital content to consumers
Digital copyright
Online intermediary liability
Cross-border internet liability
RIPA, DRIPA, Investigatory Powers Bill

4. Supply of digital content to consumers
Consumer Rights Act 2015
(Part 1 Chapter 3, 1 October 2015)

5. The new landscape – Categories
Goods Services
Software
Sale of Goods Act 1979, UCTA 1977
Goods Services
Consumer Rights Act 2015
Digital
Content

6. The new landscape – Categories
Goods Services
Consumer Rights Act 2015
Digital
Content
"Data which are produced and supplied in
digital form" (S.2(9))
"includes software, music, computer games
and applications or 'apps' " (EN)

7. The new landscape – Categories

8. The new landscape – Implied terms
Goods Services
"for a price paid
by the consumer"
Digital
Content
Satisfactory quality of digital content (further explained in S.34)
Fitness for particular purpose expressly or impliedly made known
pre-contract (but NB reliance) (S.35)
Match any description (S.36)
Trader has the right to supply content (S.41)
Some mandatory pre-contract information incorporated (S.37)
Availability of post-supply processing facility (S.39)

9. The new landscape – Rights and remedies
Goods Services
"for a price paid
by the consumer"
Digital
Content
For quality/description/purpose/processing facility:
• repair or replacement (S.43)
• price reduction/refund (S.44)
Negligent damage to consumer's device or other digital content:
Repair or compensation (S.46)
whether or not for a price
For mandatory information: costs recovery up to price (S.42(4))
For right to supply: refund (S.42(5))

10. Digital copyright
Format shifting

11. Format shifting
Personal copies for private use

12. Format shifting
1st October 2014 The Copyright and Rights in Performance ( Personal
Copies for Private Use ) Regulations 2014 come into force
Personal copies for private use
May 2011 Hargreaves: "a growing mismatch between
what is allowed under copyright exceptions, and the
reasonable expectations and behaviour of most people. …
puts the law into confusion and disrepute. It is not a
tenable state of affairs"
17 July 2015 Green J: "I quash the Regulations in their entirety"
19 June 2015 Green J: defect in the process by which evidence was
collected and evaluated during consultation

13. Online intermediary liability
Site blocking injunctions

14. Site blocking injunctions
Twentieth Century Fox v Sky UK Ltd (Birss J., 28 April 2015)
● Sites providing free downloads of 'Popcorn Time' app
• BitTorrent streaming client + media player +
• In-app film/TV show title index updated from 'SUI' website
Held:
● Neither download nor SUI sites communicate works to the public.
• App download sites made app, not copyright works, available.
• App, not SUI sites, presents index to the user.
● Neither download nor SUI sites authorise infringements by host
sites
• No evidence of relationship or connection
● PT suppliers are joint tortfeasors with host sites
• Common design to secure unauthorised communication to public of
copyright works
● PT suppliers use ISPs' services to do that
● Blocking injunction granted against app download and SUI
sites

15. Cross-border internet liability
EU online copyright jurisdiction
Extraterritorial search engine delisting

16. EU online copyright jurisdiction
Pez Hejduk (CJEU, 22 January 2015)
● Photographs published on a German .de website.
● Copyright owner sued in Austria as place of the damage
• Brussels Regulation Art 5(3) (now 7(2))
● CJEU:
• Mere fact .de website accessible in Austria sufficient to
establish damage under Art 5(3)
• Photographs would inevitably be protected by copyright in
Austria as well as in Germany.
• No basis in Art 5(3) for limiting jurisdiction to cases where the
German site had targeted Austria.
● Disjunct between jurisdiction and infringement
• Substantive test for cross-border communication to public
requires targeting

17. Extraterritorial search engine delisting
France and the ‘right to be forgotten’ – beyond .fr, beyond .com
Google’s response

18. Extraterritorial search engine delisting
It’s not just data protection…
Equustek v Jack (Google Inc, 3rd party) BCCA 11 June 2015
● Breach of confidence and passing off
● Canadian defendant evading jurisdiction
● Interim injunction requiring Google to delist D’s website worldwide
● Comity – interference with freedom of expression in other countries?

19. RIPA, DRIPA, Investigatory Powers Bill

20. RIPA, DRIPA
Bulk interception
RIPA S.8(4)
Communications
data retention
DRIPA S.1
CTSA S.21
+ IP address
matching data
Related
metadata
Determine
target location
Disapplied,
High Court, July 2015
(suspended to March
2016; permission to
appeal)
OK (IPT, Dec 2014)
Internet user
profiles?
Schrems?
External comms +
collateral internal = pool
Content
Target
development,
target
discovery
Selection (S.16)

21. RIPA, DRIPA
● February 2015 IOCCO report on police use of communications
data powers to reveal journalists’ sources
● March 2015 Parliamentary Intelligence and Security
Committee Privacy and Security Report
● June 2015 David Anderson Q.C. Review of Investigatory Powers
● July 2015 RUSI Review on the Use of Internet Data for
Surveillance Purposes
● Various legal challenges
• Investigatory Powers Tribunal cases (TEMPORA, PRISM,
CNE)
• Big Brother Watch ECtHR
• Tom Watson MP/David Davis MP judicial review of S.1
DRIPA
• Bureau of Investigative Journalism ECtHR

23. Investigatory Powers Bill
3 Reviews, nearly 200 recommendations
● Interception
• Bulk, targeted, thematic
• Content and (related?) communications data
● Equipment interference (CNE)
● Extraterritoriality
● Communications data acquisition and disclosure
● Mandatory communications data retention
• Browsing histories, digital footprints?
• Generation? Third party data? Request filter?
==================================
● Encryption?
● Monitoring by intermediaries?

24. ● The continuing saga of RIPA/DRIPA/IPB
● Copyright and linking – GS Media, Filmspeler (CJEU)
● Copyright and temporary copies – Filmspeler (CJEU)
● Intermediary obligations – Mcfadden (CJEU)
● Site blocking injunctions – Cartier v BSkyB (appeal), Pirate
Bay? (CJEU)
● EU copyright/Digital Single Market review
● EU AudioVisual Media Services Directive Review
● OFCOM supersedes ATVOD (1 January 2016)
● eIDAS Regulation (in force 2016)
• electronic signatures, electronic seals, time stamp, electronic delivery
service, website authentication
Looking forward to...

25. Graham Smith
graham.smith@twobirds.com
@cyberleagle
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