This document summarizes an annual technology law update presentation on internet and e-commerce issues from 2016. It discusses key legal developments regarding consumer protection, digital copyright, online intermediary liability, and investigatory powers. Specifically, it outlines cases on unfair choice of law terms, copyright infringement by linking, site blocking injunctions, and the ongoing debate around surveillance laws and data retention. It also previews issues to be addressed in 2017 regarding the digital single market and ongoing legal challenges.

1. Internet and eCommerce
Review 2016
Bird & Bird Annual TechLaw Update
London, 15 November 2016
Graham Smith
Partner, Bird & Bird LLP
@cyberleagle www.cyberleagle.com

2. ● The continuing saga of RIPA/DRIPA/IPBill
● 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
Last year's "looking forward to..."

3. Review of 2016
Consumer protection
Digital copyright
Online intermediary liability
Investigatory powers

4. Consumer protection
Unfair choice of law terms

5. Unfair choice of law terms
VfK v Amazon EU SARL (CJEU, 28 July 2016)
● “Luxembourg law shall apply, excluding [UN CISG]”.
● Austrian consumers targeted from .de site
• Rome I: choice of law cannot deprive consumers of protection
of law of the State of habitual residence
● Is it contrary to Unfair Terms Directive 93/13 not to inform the
consumer of this?
● CJEU:
• Choice of law clause is unfair insofar as it gives impression that
only the chosen law applies, without informing consumer that
he enjoys protection of mandatory provisions of law that would
otherwise apply.

6. Digital copyright
Infringement by linking – GS Media

7. Copyright infringement by linking
GS Media BV v Sanoma Media (CJEU, 8 September 2016)
● Communication to the public
● Svensson:
• Linking is an act of communication
• No infringement if link is to a work made freely available on
the internet [with the authority of the copyright owner]
● GS Media
• Confirms Svensson reasoning
- Copyright owner’s consent to initial free availability on the
internet
• If linking is for pursuit of gain, full knowledge of possible
illegality presumed (but rebuttable)
• Otherwise, no liability if did not know or could not reasonably
have known the illegal nature of the publication
- Notice and takedown?

8. Online intermediary liability

9. Online intermediary liability
Cartier v BSkyB et al (Court of Appeal, 6 July 2016)
● Site blocking injunction – extension to trade marks
● Jurisdiction
• IP Enforcement Directive provided a principled basis on which
to extend equitable jurisdiction to trade marks
• Other IP rights, but no further?
● Effectiveness and proportionality
• Serious discouragement, not reduction in overall infringement
• Less likely to be proportionate if large number of accessible
and appealing alternative sites
● Implementation costs
• 2-1 split – implementation costs should be borne by ISPs
• But keep under review in future especially re cumulative effect

10. Online intermediary liability
Sony Music v McFadden (CJEU, 15 September 2016)
● Shop providing free Wi-Fi to customers and visitors
• Copyright infringement by a user
● In practice only available preventative measures:
• Terminate or password-protect the internet connection
• Examine all communications passing through it
● CJEU judgment
• Conduit protection from damages confirmed
• Injunction?
- Monitoring all information transmitted impermissible
(Article 15 Electronic Commerce Directive)
- Termination of internet connection disproportionate
interference with freedom to conduct business
- Password protection dissuasive if users required to reveal
identity
- But privacy implications not considered

11. Investigatory Powers

12. Investigatory Powers Bill #IPBill
2015: 3 Reviews, nearly 200 recommendations
● Interception
• Bulk, targeted, thematic; Content and ‘secondary’ data
● Equipment interference (CNE)
• Bulk, targeted, thematic; Content and ‘equipment’ data
● Communications data acquisition and disclosure
• Bulk, targeted + request filter
● Mandatory communications data retention
• Browsing histories (Internet Connection Records)
• Retention  Generation and obtaining.
● Technical capability notices
• E2E encryption
● Extraterritoriality

13. Bill timing (currently in ping-pong)
DRIPA (existing data retention legislation)
expires 31 December 2016
BUT
CJEU Grand Chamber judgment in Watson/Tele2
10 Member States made oral submissions
E&W Law Society, Open Rights Group, Privacy International intervened
Advocate General Opinion 19 July 2016
Judgment when?
Page 13
© Bird & Bird LLP 2016

14. Tele2/Watson - Advocate General Opinion
● Generalised mandatory data retention
• Serious crime
• Prior independent review of access
• Binding legislative measures

15. What? How? Who by? Purposes?
Warrant
(SoS + JC)
MI5, SIS, GCHQ, MoD, 5 LE bodies,
MLAT
National security;
prevent/detect serious
crime; UK economic well-
being (nat sec-related,
non-BI persons)
Warrant
(SoS + JC)
MI5, SIS, GCHQ; MoD (nat sec only)
Warrant
(LE head + JC)
Police (various), National
Crime Agency
Prevent/detect serious crime,
prevent death, prevent or
mitigate injury/damage to
physical/mental health
Immigration, Revenue/Customs,
Competition/Markets, Police investigations
Prevent/detect serious crime
Warrant
(SoS + JC)
MI5, SIS, GCHQ (overseas-
related main purpose)
National security; national
security and prevent/detect
serious crime, UK economic
well-being (non-BI persons)
Warrant
(SoS + JC)
MI5, SIS, GCHQ
Notice (plus
court order for
local authorities)
Numerous authorities 11 different purposes
Notice (+ JC)
(up to 12 mths)
Secretary of State
Notice
(+ JC)
Secretary of State National security
Warrants, comms data
acquisition notices
Overview of #IPBill powers
Page 15
© Bird & Bird LLP 2016
Equipment
interference
(targeted,
thematic)
Equipment
interference
(bulk)
Comms Data
Acquisition
(bulk)
Interception
(targeted,
thematic)
Interception
(bulk)
National
security
notices
Technical
capability notices
(inc decryption)
Comms Data
Acquisition
(targeted)(?)
Request
filter
(comms data)
Comms Data
Retention
(inc ICRs)

16. What? How? Who to? Enforce? Secret?
Warrant
(SoS + JC)
TelOp Crim +
Civ
Crim
Warrant
(SoS [some
LE] + JC)
TelOp UKpers
only, Civ
Crim
Notice
(SoS + JC)
TelOp UKpers
only, Civ
Civ
Notice
(various
authorities)
TelOp Civ Crim
Warrant
(SoS + JC)
TelOp UKpers
only, Civ
Crim
Notice
(SoS + JC)
TelOp
(inc
prospective)
As per
substantive
powers
Yes
Notice
(SoS + JC)
UK
TelOp
UKpers
only, Civ
Yes
Overview of #IPBill powers
Page 16
© Bird & Bird LLP 2016
Comms Data
Retention
(inc ICRs)
Comms Data
Acquisition
(targeted)(?)
Equipment
interference
(targeted,
thematic)
Encryption
Equipment
interference
(bulk)
Request
filter
(comms data)
Technical
capability
notices
Comms Data
Acquisition
(bulk)
Interception
(targeted,
thematic)
Interception
(bulk)
Interception
(secondary
data)
Equipment
interference
(equipment
data)
National
security
notices

17. Some relevant legal challenges
● CJEU
• Tele2/Watson judicial review of S.1 DRIPA
● Investigatory Powers Tribunal cases
• Judicial review of thematic CNE case
● Big Brother Watch etc ECtHR
• TEMPORA/PRISM
● Bureau of Investigative Journalism ECtHR
● Etc etc
● Future
• More challenges?
• Data protection adequacy determination?

18. And finally…

19. ● The continuing #IPBill/#IPAct saga
● Digital Economy Bill/Act
• Criminal copyright - redefinition of communication to the public
• Porn site age verification + new regulator
● Net neutrality – end of transition period 31 Dec 2016
UK in progress…

20. ● Copyright and linking – Filmspeler, Pirate Bay (CJEU)
● Copyright and temporary copies – Filmspeler (CJEU)
● Copyright and remote PVR – VCAST (CJEU)
● Site blocking injunctions – Pirate Bay (CJEU)
● EU Digital Single Market – proposed legislation
● EU AudioVisual Media Services Directive – proposed
amendment
● Extraterritoriality – CNIL/Google (France), Equustek
(Canada)
● Tort jurisdiction, Art 5(3)/7(2) – Ilsjan (CJEU), Concurrence
(CJEU)
Looking forward to...

21. Graham Smith
graham.smith@twobirds.com
@cyberleagle
Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses.
Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number OC340318 and is authorised and regulated by the
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of any non-members who are designated as partners, and of their respective professional qualifications, is open to inspection at that address.
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Thank you