HomeInsightsNeed to Know – 2012.10.08

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General

European Commission adopts Single Market Act II on 20th anniversary of Single Market.

European Council adopts Orphan Works Directive.

Technology

Ofcom announces “significant progress” has been made in moving forward delivery of 4G mobile services across the UK.

Business leaders and policy makers support European Commission’s €50 billion plan for strategic infrastructure investment in the internet.

Nominet launches consultation on potential introduction of new .uk domain name service.

Data Protection

Information Commissioner’s Office confirms it is set to issue two monetary penalties totalling over £250,000 to two illegal marketers responsible for distributing millions of spam texts.

Broadcasting

ASA finds Channel Four’s “Bigger, Fatter, Gypsier” ads offensive and irresponsible because they portrayed travellers in a negatively stereotypical way.

Litigation

Small claims track introduced in Patents County Court.

Court of Justice of the European Union introduces new rules of procedure.

Music

Live Music Act 2012 comes into force.

Publishing

Defamation Bill is revised to allow courts to order website operators to remove defamatory material.

Gambling & Betting

European Gambling and Betting Association call for “hard” action from European Commission to curb market fragmentation and protect consumers.

Computer Games

Department for Culture, Media and Sport publishes consultation on the design of a cultural test necessary for introduction of new tax reliefs for the creative sector.

General

European Commission adopts Single Market Act II on 20th anniversary of Single Market.

2012 marks the 20th anniversary of the Single Market and, according to the Commission, it has been a great success.  “The message is clear, the evidence is there: a strong, deep and integrated Single Market creates growth, generates jobs and offers opportunities for European citizens which were not there 20 years ago, it says. 

The Commission also says that completion of the Single Market is a continuous exercise and a central element of the European growth agenda that is intended to address the current economic crisis.  For this reason the Commission has adopted the Single Market Act II, putting forward twelve key actions for rapid adoption by the EU institutions.  These actions are concentrated on four main drivers for growth, employment and confidence: a) integrated networks, b) cross-border mobility of citizens and businesses, c) the digital economy, and d) actions that reinforce cohesion and consumer benefits. 

The proposals for the digital economy include:

  • facilitate e-commerce in the EU by making payment services easier to use, more trustworthy and competitive;
  • address a key underlying cause of lack of investment in high speed broadband connection, i.e. civil engineering costs; and
  • make electronic invoicing standard in public procurement procedures.

The UK Government has welcomed the Act.  Vince Cable, Secretary of State for Business, Innovation and Skills said: “The single market is good for British businesses and the UK has always been a champion of the single market.  It makes trade easier, gets us access to markets and is a significant market in itself for British companies.  Single Market Act II will help improve the way the market functions, and bring it up to date.  The UK has been closely involved in making sure that the Act brings forward the improvements needed, opening up new markets without placing additional burdens on European companies.  The UK will continue to champion the single market and prioritise measures with the greatest potential to boost jobs and growth”.  To read the Commission’s press release click here.  To read the UK Government’s press release, click here.

European Council adopts Orphan Works Directive.

The aim of the new Directive on Orphan Works is to provide Europe’s libraries, archives, film heritage institutions, public broadcasters and other organisations acting in the public interest with the appropriate legal framework to provide on-line cross-border access to orphan works contained in their collections. 

Following Parliament’s approval of the Directive last month, the Council has also now adopted it, marking the final step in the legislative procedure.  The Directive will formally enter into force in the coming weeks following its publication in the Official Journal of the European Union.  Member States will then have two years to transpose it into national law.

European Commissioner Michel Barnier said: “Today’s adoption of the Orphan Works Directive is a significant achievement in our efforts to create a digital single market.  It will enable easy online access for all citizens to our cultural heritage.  The swift and successful outcome of the legislative process and the broad consensus reached both in the Council and the Parliament prove that by working together we can agree on measures to ensure that the EU copyright rules are fit for purpose in the digital age.  Alongside other achievements such as the European Memorandum of Understanding to facilitate the mass digitisation of out-of-commerce books, this Directive is one more step in making licensing and online access to cultural content easier”.

Technology

Ofcom announces “significant progress” has been made in moving forward delivery of 4G mobile services across the UK.

Ofcom says that the progress means that the 4G auction process is on track to begin at the end of the year to enable competitive 4G services to be made available across UK during the first half of 2013.

Ofcom says that over the last 18 months it has consulted on how it proposes to auction the spectrum “in a way that ensures it is available as quickly as possible and in a way that ensures a competitive market”.  

In August, Ofcom gave approval to an application by Everything Everywhere (Orange/T-Mobile) to use some of its existing spectrum to offer a 4G service.  This is expected to launch this year.

Ofcom says that its consistent objective has been “to ensure that the 4G spectrum – at 800 MHz and 2.6 GHz – is made available as soon as possible”.  Following discussions with TV broadcasters, Digital UK and the transmission company Arqiva, Ofcom has now secured the earlier release of frequencies that were previously used for digital-terrestrial broadcasting.  This spectrum will now be cleared and ready for 4G mobile services across much of the UK five months earlier than previously planned, from spring 2013.  This has only become possible in the past few months, Ofcom says, as a result of the significant progress that has been made to date with the digital switchover and the clearance programme, which has been running ahead of schedule.

Ed Richards, Ofcom Chief Executive, said: “The actions we have taken with industry and government avoids the risk of significant delay and is tremendous news for consumers who might otherwise have waited a considerable period for the next generation of mobile broadband services.  Ofcom’s objective has always been to release the spectrum as early as possible and we remain focused on starting the auction by the end of the year”.  To read Ofcom’s press release in full, click here.

Business leaders and policy makers support European Commission’s €50 billion plan for strategic infrastructure investment in the internet.

At a high-level conference in Brussels, business leaders and policy makers strongly supported the creation of a Connecting Europe Facility as proposed by the European Commission for the EU’s new financing period 2014-2020.  The Commission says that with up to €50 billion euros the Connecting Europe Facility could become “a key instrument for targeted infrastructure investment at European level to ensure the smooth functioning of the Single Market and boost sustainable growth, jobs and competitiveness across the European Union”.

During the event speakers and participants said that the Connecting Europe Facility would help get strategic infrastructure off the ground that would help Europe to compete and grow in a globalised world, in line with the Europe 2020 strategy and the recently agreed Compact for Growth.  In fact, without it, participants agreed that many necessary infrastructure investments in transport, energy and the internet in the EU would not happen.  Leaving it to be dealt with purely at national level would not work.  

Participants agreed that high-performing, sustainable and efficiently interconnected trans-European networks were deemed essential for the full functioning of the EU’s Single Market and the shift to a more sustainable low-carbon economy.

Participants also agreed that the Connecting Europe Facility is a “concrete expression of a new thinking and partnership that will benefit Europeans across all Member States, citizens and businesses alike as better interconnections would make work and travel easier, enhance competitiveness, business opportunities and energy security and make Europe’s economy greener”.  To read the Commission’s press release in full, click here.

Nominet launches consultation on potential introduction of new .uk domain name service.

Nominet says that the proposed new service, called direct.uk, is aimed at businesses that are, or want to get, online and would potentially offer shorter domain names registered at the second level (i.e. yourbusiness.uk) as well as one of the most comprehensive package of security features available.  Nominet is seeking views from all stakeholders on the potential introduction of this proposed new service, which would be made available alongside the existing .uk portfolio. 

The idea behind the new domain name service is to support the economic growth of the UK internet, which is estimated to be worth £121 billion and growing.  Proposed key features include: verification to check a registrant has a UK address; daily monitoring for malicious software and viruses; and a digital signature which minimises the risk of a domain name being hijacked.  These measures would be supported by a trustmark to give consumers a clear sign that it is a verified domain name.

These additional features would, Nominet says, help to guard against cybercrime, which costs the UK approximately £27 billion per year, and play an important part in creating a trusted space for businesses and consumers.  The consultation closes on 7 January 2013.  To read Nominet’s press release in full and for a link to the consultation documentation, click here.

Data Protection

Information Commissioner’s Office confirms it is set to issue two monetary penalties totalling over £250,000 to two illegal marketers responsible for distributing millions of spam texts.

The ICO has written to both individuals to confirm that it intends to issue both of them with a monetary penalty for breaching the Privacy and Electronic Communications Regulations 2003, which regulate electronic marketing.  The recipients have 28 days to respond and prove that they were complying with the law otherwise final penalty notices will be issued.

Commenting on today’s announcement, Simon Entwisle, Director of Operations said: “The public have told us that they are increasingly concerned about the illegal marketing texts and calls.  These are often made by rogue companies claiming to offer pay outs for accidents a person has never had or PPI claims that they are not necessarily entitled to.  While companies can phone people to sell them the latest product or service, the law states that individuals should not receive unsolicited texts or automated marketing calls unless they have given their permission.  We know many companies are failing to do this and two individuals responsible for sending millions of illegal marketing messages are now facing six figure penalties unless they can prove otherwise”.  To read the ICO’s press release, click here.

Broadcasting

ASA finds Channel Four’s “Bigger, Fatter, Gypsier” ads offensive and irresponsible because they portrayed travellers in a negatively stereotypical way.

All four posters for the Channel Four documentary Big Fat Gypsy Weddings stated in large text “BIGGER. FATTER. GYPSIER“.  The first poster featured a close-up of a young boy looking directly at the camera, the second poster showed a man leading a horse across a field.  The third poster showed two young women wearing low-cut bra tops and the fourth poster showed three young girls dressed for their first Holy Communion standing in front of a caravan.

The Irish Traveller Movement in Britain (ITMB) complained that the ads endorsed prejudice against gypsies.  It said that the ads were likely to cause harm to children, that a child was portrayed in a sexualised way and that the advertiser had not been given written permission to portray the children in the way they had been portrayed.

The ASA said that many readers were likely to infer from the word “Gypsier” that the depictions in the individual ads were highly typical of the gypsy and traveller community rather than recognising the reference to the first series “My Big Fat Gypsy Wedding”.

The ASA found that the ad with the close-up of the young boy was offensive and irresponsible because the image was likely to be seen as aggressive and, combined with the strapline, could be interpreted to mean that aggressive behaviour was typical of the younger members of the gypsy and traveller community.  The ASA also found that the poster could cause distress and mental harm to children from those communities because it reaffirmed commonly held prejudices. 

Equally, the ASA found that the poster with showing the young women wearing low-cut bra tops irresponsibly endorsed a prejudicial view of the gypsy community.  Upon learning that one of the young women in low-cut bras was actually a 15 year old, the ASA said that Channel 4 had acted irresponsibly by depicting a child in a sexualised way and that the ad was likely to be harmful to the girl.  Accordingly, the two ads breached CAP Code rules 1.3 (Social responsibility) and 5.1 (Children).

In relation to the ads with the man and the horse and the first Communion girls, the ASA said that although the ITMB might not like either the suggestion that caravans and horses were typical of gypsy life or the focus on the girls’ elaborate dresses, the ads were unlikely to cause serious or widespread offence. 

Finally, the ASA explained that written permission was only required if the marketer portrayed subjects unfairly or in an offensive way.   Since the poster (First Communion) at which this complaint was levelled was not considered offensive, the ASA ruled that Channel Four was under no obligation to obtain permission for publication.  To read ASA Adjudication on Channel Four Television Corporation (3 October 2012) in full, click here.

Litigation

Small claims track introduced in Patents County Court.

The aim of introducing a small claims track procedure is, the Government says, to speed up the court process and make it cheaper and easier, particularly for small and medium sized businesses, to protect their intellectual property rights.

The small claims track will provide copyright, trade mark and unregistered design holders the option of pursuing basic IP disputes through an informal hearing, without legal representation.  This is expected to reduce significantly the cost of pursuing IP infringement cases.  Claims allocated to the small claims track will be subject to damages restrictions of £5,000 or less to ensure they are proportionate to what is at stake.

The Government has been following a programme of reform to simplify and streamline court procedures.  Changes introduced include a cap on damages and a limit on legal costs.  Both measures have, the Government claims, reduced the cost and complexity of legal action for businesses.

Welcoming the announcement, Business Minister Michael Fallon said: “Small firms, whose intellectual property has been infringed, will have today a simpler and easier way to take their cases forward, by writing direct to the judge and setting out the issues.  Lower legal costs will make it easier for entrepreneurs to protect their creative ideas where they had previously struggled to access justice in what could often be an expensive progress.  A smarter and cheaper process is good for business and helping businesses make the most of their intellectual property is good for the economy”.  To read the Government’s press release in full, click here.

Court of Justice of the European Union introduces new rules of procedure.

Due to the constant rise in the number of cases brought before the CJEU, dominated by references for a preliminary ruling, the court is adapting its rules of procedure to ensure that the important features of those cases can more readily be taken into consideration, while at the same time strengthening its ability to dispose within a reasonable period of time all cases brought before it.  The new rules of procedure will enter into force on 1 November 2012.  

Notwithstanding a series of amendments to the rules of procedure of the court, the structure of those rules has remained fundamentally unchanged since their original adoption on 4 March 1953.  The rules still reflect a preponderance of direct actions, usually between a legal person or a Member State and an institution of the European Union, whereas in fact, with the exception of infringement proceedings and some special categories of actions for annulment, that type of case now largely falls outside the court’s jurisdiction.  This year, references for a preliminary ruling from the courts and tribunals of the Member States represented the primary category of cases brought before the court.  

The new rules are designed to reflect that fact by giving such references a separate title, while making the rules in that title both clearer and more comprehensive for litigants as well as for national courts and tribunals.

A second key objective of amending the rules is to maintain the court’s capacity in the face of an ever-increasing caseload to dispose within a reasonable period of time of the cases brought before it.  Thus, the new rules of procedure introduce a number of measures that should encourage cases to be dealt with swiftly and efficiently, including the possibility of limiting the length of written pleadings or observations lodged before it, or the relaxation of certain preconditions, particularly where the answer to the question referred by a national court or tribunal for a preliminary ruling is straightforward.

Changes have also been made to the procedure of oral hearings.  If the Court considers, on reading the written pleadings or observations lodged before it, that it has sufficient information it will no longer be obliged to hold a hearing, which should enable it to give rulings within a shorter period of time.  The new rules of procedure also provide for the court to be able to invite the parties to concentrate in their oral pleadings on one or more specific issues or for the court to be able to arrange joint hearings for two or more cases of the same type relating to the same subject matter.

The new rules of procedure also seek to clarify existing rules and practices.  Thus, a clearer distinction is drawn between the rules that apply to all types of action and those that are specific to each type (references for a preliminary ruling, direct actions and appeals), while all the articles of the new rules are specifically numbered and headed, making searches easier.  

In relation to preliminary ruling proceedings the new rules of procedure now include a rule setting out the minimum essential content of any request for a preliminary ruling and a rule on anonymity, which should help national courts
and tribunals in the formulation of their references, whilst ensuring enhanced respect for the privacy of the parties.  

The amended rules also clarify the rules for cross-appeals, which will now always have to be introduced by a separate document.  This is designed to facilitate their subsequent handling by the court.

Finally, this recasting of the rules of procedure simplifies the existing rules, either by repealing certain rules that are out-dated or not applied, or by revising the procedure for dealing with certain cases.  Examples include the simplification of the rules relating to the intervention of Member States and European Union institutions, the designation for one year of a Chamber responsible for review cases and the easing of procedural arrangements in dealing with requests for Opinions by providing for a single Advocate General to be involved instead of all the Advocates General of the court.  To read the court’s press release in full, click here.

Music

Live Music Act 2012 comes into force.

Hundreds of live music venues are now exempt from licensing laws thanks to the Live Music Act 2012. 

The 2012 Act removes regulatory burdens and costs from hundreds of venues including pubs and clubs, making it easier to stage live music.  Live unamplified music performed in any location, and live amplified music in on-licensed premises and workplaces for audiences of up to 200 people, will no longer need a specific licence between 08:00 and 23:00.

Brigid Simmonds, Chief Executive of the British Beer & Pub Association said: “This is a very welcome change, as live music is hugely important to pubs and musicians, many of whom begin performing in their local pub.  Ever since the two-in-a-bar rule was lost in the Licensing Act 2003, the BBPA has been pressing for change.  I would urge local authorities to remove any unnecessary conditions on live music in pubs.  We need to reduce the red tape burden, as pubs are at the heart of local communities, vital for economic recovery and creating local jobs.”

Deborah Annetts, Chief Executive of the Incorporated Society of Musicians said: “We all know how important live music is to both working music professionals and to those just starting out in their career.  The previous regime made it increasingly difficult to put on live music gigs and saw all kinds of venues threatened with fines.  Now, musicians will be free to earn a living and hospitals, schools and other venues including pubs will finally be able to put on live concerts without have to seek permission to do so from a council.”  To read the Government’s press release in full, click here.

Publishing

Defamation Bill is revised to allow courts to order website operators to remove defamatory material.

According to the Government, the aim of the Defamation Bill is to “reform the law of defamation to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation.  The Bill makes a number of substantive changes to the law of defamation, but is not designed to codify the law into a single statute”.

The revision to the Bill addresses the fact that, as the Government explains in its explanatory notes, “an author may not always be in a position to remove from a website material which has been found to be defamatory”. Thus, where a court gives judgment for the claimant in an action for defamation, it may order the operator of a website on which a defamatory statement is posted to remove the statement.  This will enable an order for removal of the material to be made during or shortly after the conclusion of proceedings, or on a separate application under Part 23 of the Civil Procedure Rules. 

The Bill has now completed it passage through the House of Commons and is due to receive a first reading in the House of Lords on 9 October 2012.  To read the explanatory notes in full, click here.

Gambling & Betting

European Gambling and Betting Association call for “hard” action from European Commission to curb market fragmentation and protect consumers.

The EGBA has outlined its expectations for the Commission’s Communication and Action Plan on online gambling, currently scheduled to be published mid to late October 2012.  According to the EGBA, this initiative, which flows from the Commission’s commitments to the European Parliament last November, will be a key test of whether:

  • the current fragmentation of the EU online gambling market will continue;
  • consumers will therefore continue to suffer different levels of protection throughout the EU; and
  • some consumers, in particular children and the vulnerable, will continue to suffer no protection at all where a Member State closes the door to EU-regulated operators, thus encouraging consumers to look for non-regulated websites.

Sigrid Ligné, Secretary General of the EGBA said: “We deplore the situation today where we see 27 ‘mini-markets’ for gambling in Europe.  We are calling for the introduction of European rules to ensure proper protection for consumers and maintain a crime-free environment throughout the EU, while affording open, fair and transparent licensing conditions for EU-regulated operators”. 

What is ultimately needed, the EGBA says, is overarching EU legislation for online gambling, as there is for virtually all other online services.  The objective is to have EU-wide sector specific legislation that regulates both market access and consumer protection issues.  The first steps the Commission should take are, the EGBA says, to develop:

  • common consumer protection standards, ideally based on the existing workshop agreement published in 2011 by the European Committee for Standardisation;
  • common technical standards and reporting tools; and
  • common licensing requirements.

Sigrid Ligné added: “The Commission wants the online single market to work as effectively as the offline market in promoting economic growth.  Can the Commission therefore afford to sit back and ignore an online industry which is set to grow from €8.5 billion in 2010 to €13 billion in 2015?”  To read the EGBA’s press release in full, click here.

Computer Games

Department for Culture, Media and Sport publishes consultation on the design of a cultural test necessary for introduction of new tax reliefs for the creative sector.

In the March 2012 Budget, the Chancellor announced that the Government will introduce corporation tax relief for the animation, high-end television and video games industries from April 2013, subject to State Aid approval from the European Commission.  The DCMS is now seeking views on a proposed test that will identify culturally British video games, animation and high-end television that might be considered eligible for the new tax relief.

In providing tax relief, the Government is seeking to promote the sustainable production of culturally British product/content by:

  • encouraging the production of video games, animation and high-end television that might not otherwise be made;
  • promoting sustainability in these sectors, and
  • maintaining a critical mass of UK infrastructure and creative and technical expertise to facilitate the production of culturally British video games, animation and high-end television.

The Government is proposing to award points for those elements that contribute to the overall cultural value of a video game, animation or high-end television programme.  

Creative Industries Minister Ed Vaizey said: “Government is committed to supporting these creative and dynamic sectors by introducing tax reliefs for these industries.  The film tax relief has been a huge success and I encourage all those with a vested interest in the animation, high-end television and video games industries to take part in this exercise, and make sure your views are known”.

The deadline for consultation responses is 29 October 2012.  To read the Government’s press release and for information on how to respond to the consultation, click here.

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