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July 28, 2014
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Introduction
This week we report on the news that the Data Retention and Investigatory Powers Bill has received Royal Assent, just one week after being laid before Parliament. We also report on the Information Commissioner’s call for stronger powers, more sustainable funding and a clearer guarantee of independence, in light of recent events in the area of data protection. Meanwhile, Ofcom is consulting on the scheduling of television advertising and has published research on consumer attitudes and trends in violence shown on UK TV programmes. We also report on the European Court of Human Rights’ decision that the German courts’ decision to ban the publication of an article regarding former Chancellor Schröder’s appointment to the board of a German-Russian consortium was a breach of Article 10 of the European Convention on Human Rights. In addition, we report on the fact that the European Commission has adopted a Recommendation on online gambling services principles to ensure the effective protection of consumers.
UK creative industries and ISPs partner in new initiative to promote legal online entertainment.
Intellectual Property Enterprise Court finds domain names featuring claimant’s brand names constituted instruments of fraud.
Ofcom publishes call for inputs in relation to consumer switching.
Data Retention and Investigatory Powers Bill receives Royal Assent.
Information Commission Office publishes annual report for 2013/2014.
Ofcom consults on scheduling of television advertising.
Ofcom publishes research on consumer attitudes and trends in violence shown on UK TV programmes.
Ofcom publishes statement listing television channels required to provide access services (subtitling, signing and audio description) in 2015.
European Court of Human Rights finds German courts’ decision to ban publication of article regarding former Chancellor’s appointment to board of German-Russian consortium constituted breach of Article 10.
Companies House to make all digital data available free of charge.
European Commission consults on possible improvements of EU merger control rules.
European Commission adopts Recommendation on online gambling services principles to ensure effective protection of consumers. Read more
Advertising Standards Authority and Committee for Advertising Practice publish their “Commitment to Good Regulation”.
UK creative industries and ISPs partner in new initiative to promote legal online entertainment.
Representatives from the UK’s creative industries and major internet service providers have come together with the support of the Government to launch “Creative Content UK”, a new partnership that aims to boost consumer awareness of the wide array of legitimate online content services and help reduce online copyright infringement.
Creative Content UK will comprise two key components. The first, to be launched before Spring 2015, will be a major multi-media education awareness campaign, led by content creators and part-funded by the Government, that aims to create wider appreciation of the value and benefits of entertainment content and copyright.
The second component is a subscriber alerts programme that will be co-managed and co-funded by ISPs and content creators, due to begin at a later date. Participating ISPs will alert and advise subscribers when their accounts are believed to have been used to infringe copyright. Account holders will receive an alert from their ISP, advising them that unlawful file sharing may have taken place on their connection and offering advice on where to find legitimate sources of entertainment content.
Business Secretary, Vince Cable and Culture Secretary, Sajid Javid have also announced the Government’s support for this initiative and pledged £3.5 million in funding for the education awareness component of the campaign.
Creative Content UK founding partners include the Motion Picture Association, the BPI (British Recorded Music Industry), and the four main internet service providers: BT, Sky Broadband, TalkTalk and Virgin Media, with the prospect of other ISPs joining at a later stage. It also has the backing and support of a broad range of organisations from across the creative community including the BBC, Equity, the Film Distributors’ Association, ITV, the Independent Film & Television Alliance, the Musicians’ Union, Pact, the Premier League, the Publishers Association and UK Music.
Creative Content UK will operate within the wider context of successful programmes aimed at combating copyright infringement such as the blocking of illegal sites and working with advertisers and payment processors to cut off revenues to such sites. To read the press release in full, click here.
Intellectual Property Enterprise Court finds domain names featuring claimant’s brand names constituted instruments of fraud.
In an action against an individual who registered domain names, which included, in various forms, the claimant’s trade marks or trade names with the ultimate aim of reselling them to the claimant for profit, the Intellectual Property Enterprise Court applied British Telecommunications plc v One in a Million [1999] WLR 103 and granted the claimant summary judgment for passing off. Essentially, the defendant, who was the former director of a company in competition with the claimant selling pole exercise and aerial dance equipment, had traded in circumstances causing a misrepresentation to the relevant public who consulted the register, and had created an instrument of fraud.
The court refused summary judgment for trade mark infringement, however, on the basis that, in light of more recent rulings of the Court of Justice of the European Union, he could not say beyond doubt that the offer to sell the domain names was an economic activity and that that economic activity affected the trade mark rights of the claimant (Vertical Leisure Ltd v Poleplus Ltd [2014] EWHC 2077 (IPEC) (2 June 2014) – to read the judgment in full, click here).
Ofcom publishes call for inputs in relation to consumer switching.
With work already underway to help consumers change landline and broadband providers with greater ease and convenience, Ofcom has now published a document setting out its proposed future programme of work in relation to consumer switching.
To progress this phase of work, Ofcom is seeking input from stakeholders to understand better the processes used to switch providers of bundled voice, broadband and subscription Pay TV services, and mobile voice and data services. Ofcom says it is keen to understand the impact of these processes on the consumer experience of switching and on competition. It will continue this process over the summer and plans to publish its findings in the first half of 2015, together with a consultation, if it concludes that reforms to switching processes in any of the sectors considered in the call for inputs document should be made.
The document also sets out Ofcom’s proposal to consult on switching processes used on the KCOM copper network. KCOM provides voice and broadband services in the Kingston upon Hull area, where the Openreach network is not available. Ofcom says it will consult in the summer on harmonising the two existing KCOM processes to a single process led by the gaining provider. It aims to publish a statement by the end of 2014. Ofcom is requesting responses by 5 pm on 12 September 2014. For a link to the call for inputs documentation, click here.
Data Retention and Investigatory Powers Bill receives Royal Assent.
As we reported last week, the Data Retention and Investigatory Powers Bill was laid before Parliament on 10 July 2014. Following the fast-track procedure, the Bill received Royal Assent a week later on 17 July 2014. According to the Government, the Act addresses urgent issues around the retention of communications data by companies, and the interception of communications following the decision by the Court of Justice of the European Union that the Data Retention Directive (2006/24/EC) was invalid.
The Government says that the Act, which comes into effect immediately, only maintains and clarifies the existing regime and does not create any new powers, rights of access or obligations on companies beyond those that already exist. It also strengthens existing safeguards and includes a two-year sunset clause to ensure the legal framework is kept under review into the next Parliament. In parallel, the Government has announced new measures to increase transparency and oversight:
- the Independent Reviewer of Counter-Terrorism Legislation will hold a full review of powers and capabilities;
- the Interception of Communications Commissioner will report every six months on the operation of the legislation;
- a senior diplomat will be appointed to lead discussions with overseas governments and communication service providers to assess and develop formal arrangements for the accessing of data for law enforcement and intelligence purposes held in different jurisdictions;
- an Independent Privacy and Civil Liberties Board will be created to consider the balance between the threat and civil liberties concerns in the UK, where they are affected by policies, procedures and legislation relating to the prevention of terrorism; and
- the number of public bodies currently able to request communications data will be reduced.
Finally, the Government will publish annual transparency reports to make more information publicly available on the way surveillance powers are operated. To read the Government’s press release in full, click here.
Information Commission Office publishes annual report for 2013/2014.
The latest annual report shows that the ICO responded to a record number of data protection and freedom of information complaints in 2013/2014. The ICO handled 259,903 calls to its helpline and resolved 15,492 data protection complaints, a rise in both cases of over 10% on the previous financial year. The ICO has also decided on 5,296 freedom of information complaints, a 12% rise on last year’s figure, and received 161,720 reports from people concerned about spam texts and nuisance calls.
In the light of various events, including the Edward Snowden revelations and the decision of the Court of Justice of the European Union in the Google Spain case (Case C-131/12 Google Spain and Google), the Information Commissioner, Christopher Graham, has stressed the need for an independent regulator overseeing the handling of people’s personal data. He has also called for stronger powers, more sustainable funding and a clearer guarantee of independence. For the past five years the ICO has faced a reduction in its funding for FOI, while the proposed EU data protection reforms would remove the notification fee that funds the ICO’s work under the Data Protection Act 1998. To read the ICO’s press release in full and for a link to the annual report, click here.
Ofcom consults on scheduling of television advertising.
Ofcom sets rules that restrict the number of advertising breaks that may be shown during programmes depending on their length and genre. These rules are intended to protect viewers and are, in some cases, based on requirements stipulated in European law.
Ofcom is now consulting on options available to it in order to secure the effective and consistent enforcement of rules on the extent to which television programmes can be interrupted by advertising.
Although European law specifies the number of advertising breaks permitted during certain programmes, it does not specify the approach that national regulators like Ofcom should take in enforcing these rules. Broadcasters have argued strongly in favour of different approaches. In this document, Ofcom sets out its view of the advantages and disadvantages of each possible approach.
The document also outlines proposals for changes to the advertising scheduling rules that are designed to make them clearer and easier to follow. Following the consultation, Ofcom expects to issue a statement in early 2015. The deadline for responding to the consultation is 5 pm on 10 October 2014. For links to the consultation documentation, click here.
Ofcom publishes research on consumer attitudes and trends in violence shown on UK TV programmes.
The research supports Ofcom in its role in protecting TV viewers, especially children. It looks at how violence on TV has changed since Ofcom issued guidelines to broadcasters in 2011 to avoid programmes being shown before 9pm that might be unsuitable for children.
The research comprises two separate reports. The first study focused on public attitudes towards violence on TV among people from a range of ages and socio-economic groups. The second was an analysis of four popular UK soap operas, which looked at instances of violence, or threats of violence, and people’s views on them.
The first report, on the views of audiences, found that different demographic groups showed subtle differences in their views about violent content. However, all agreed that children should not be exposed to any sexual violence on TV before and straight after the watershed.
People considered the time of broadcast to be the single most important factor in determining the acceptability of violent content on TV. Viewers were prepared to tolerate moderately violent scenes before the watershed. However, all agreed that strong scenes with a vulnerable victim were unacceptable before 9pm.
The research also found that viewers have a sophisticated ability to analyse contextual factors when assessing whether violent scenes were acceptable. Many people said they watched violent content for a number of reasons. Some said it made genres, such as action or drama, seem realistic and provided tension, therefore contributing to their TV viewing experience.
As for the second part report, the study of soap operas not only looked at violent scenes, but also measured those with menacing or threatening behaviour, and violence that was implied off-screen.
It found that violence in soaps was usually clearly indicated in advance, so viewers were unlikely to be surprised when it took place. The research showed 79% of violent scenes were judged “credible” and “rarely surprised” viewers. Broadcasters have also used violence in soap operas to help raise awareness and generate public debate around social issues such as domestic abuse.
Instances of strong scenes, portraying violence that might make the viewer uncomfortable, were very infrequent, at 6% overall. Depictions of terror during violent scenes, such as the imbalance of power in a fight, near fatal violence and post-traumatic stress flashbacks, varied between 3% and 5% in the soaps covered.
Ofcom says that it will use this research to update its guidance issued to broadcasters about how to deal with violence on TV. It will also be used to help inform Ofcom’s decisions when investigating TV programmes with violence shown before, or soon after, the watershed.
The research findings will also be shared with broadcasters to help them better understand audience expectations about violence on TV. To read Ofcom’s press release in full, click here.
Ofcom publishes statement listing television channels required to provide access services (subtitling, signing and audio description) in 2015.
Seventy-nine domestic channels will be required to provide access services next year, compared with 76 in 2014. These channels account for over 90% of the audience share for UK TV.
In addition, 39 non-domestic channels across eight different member states of the European Union will be required to provide access services in 2015. The statement also sets out the levels at which the relevant channels must provide these services. For a link to the full statement, click here.
European Court of Human Rights finds German courts’ decision to ban publication of article regarding former Chancellor’s appointment to board of German-Russian consortium constituted breach of Article 10.
In a Chamber judgment, the European Court of Human Rights has found that the German courts’ decision banning the daily newspaper, Bild, from publishing an article repeating certain suspicions on the part of the deputy president of the Liberal Democratic Party’s parliamentary group over the circumstances in which former Federal Chancellor, Mr Schröder, had been appointed as chairman of the supervisory board of a German-Russian consortium to build a gas pipeline, was a violation of Article 10 of the European Convention on Human Rights.
The ECtHR found that the case concerned matters of public interest and that the former Chancellor, having held one of the highest political offices in Germany, had a duty to show a much greater degree of tolerance than a private citizen.
The ECtHR concluded that Bild had not exceeded the limits of journalistic freedom and that the German courts had failed to establish that there had been a pressing social need to put the protection of the reputation of the former Chancellor above the right of the press to freedom of expression (Axel Springer AG (no 2) v Germany (no. 48311/10) (10 July 2014) – to read the judgment in full (in French only) and to read the ECtHR’s press release (in English) click here).
Companies House to make all digital data available free of charge.
This will mean the establishment of a truly open register of business information. As a result, it will be easier for businesses and members of the public to research and scrutinise the activities and ownership of companies and connected individuals. Last year (2013/2014), customers searching the Companies House website spent £8.7 million accessing company information on the register.
This change will come into effect from the second quarter of 2015 (April to June). To read the Government’s press release in full, click here.
European Commission consults on possible improvements of EU merger control rules.
The Commission has launched a public consultation on proposals to improve merger control at EU level outlined in a White Paper.
The reform of the Merger Regulation in 2004 has made the EU’s merger control regime more efficient and predictable, preserving effective competition in the Single Market for the benefit of businesses and consumers. Nevertheless, the experience of the last ten years has also shown, the Commission says, that there is scope for further improving some aspects of EU merger control.
In its White Paper “Towards More Effective EU Merger Control”, the Commission makes proposals that would allow it to better deal with non-controlling minority shareholdings, which may affect competition, and that would make referral procedures simpler and faster.
Comments can be submitted until 3 October 2014. In light of the comments received, the Commission may then put forward a legislative proposal to revise EU Merger Regulation. To read the Commission’s press release in full, click here.
European Commission adopts Recommendation on online gambling services principles to ensure effective protection of consumers.
The Recommendation encourages Member States to pursue a high level of protection for consumers, players and minors through the adoption of principles for online gambling services and for responsible advertising and sponsorship of those services. The aims of the principles are to safeguard health and to minimise the eventual economic harm that may result from compulsive or excessive gambling, the Commission says.
The principles set out in the Recommendation include:
- basic information requirements for gambling websites, in particular to ensure that consumers are provided with sufficient information to understand the risks related to gambling. Commercial communication (advertising and sponsorship) should be carried out in a responsible way;
- Member States should ensure that minors are not able to gamble online, and that rules are in place to minimise their contact with gambling, including through advertising or promotion of gambling services whether broadcast or displayed;
- there should be a registration process to open a player account so that consumers have to provide details of age and identity for verification. This should also enable operators to keep track of player behaviour and raise the alarm if necessary;
- on-going support should be available to players to prevent gambling-related problems by equipping them with tools to keep gambling under control, such as being able to set spending limits during the registration process, to get information alerts about winnings and losses whilst playing, and to take time out from gambling;
- players should have access to helplines they can call for assistance about their gambling behaviour and they should be able to exclude themselves easily from gambling websites;
- advertising and sponsorship of online gambling services should be more socially responsible and transparent. For example, it should not make unfounded statements about chances of winning, exert pressure to gamble, or suggest that gambling resolves social, professional, personal or financial problems; and
- Member States should ensure that training is provided to employees of online gambling operators interacting with players to ensure they understand problem gambling issues and are able to liaise with players appropriately.
Member States are also invited to carry out awareness-raising campaigns about gambling and related risks, as well as to collect data about the opening and closing of player accounts and breaches of commercial communication rules. Member States should also designate independent regulatory authorities to monitor compliance with the Recommendation. To read the Commission’s press release in full and for a link to the Recommendation and associated documents, click here.
Advertising Standards Authority and Committee for Advertising Practice publish their “Commitment to Good Regulation”.
The ASA and CAP say that it is “important that those we regulate, including businesses and organisations of all sizes, understand what standards they can expect from us as a regulator”. Their purpose is, they say, to make ads responsible so that people are protected and can feel more confident in the ads they see and hear. By doing so in a way that’s fair and balanced towards businesses and advertisers, the regulators say that they “allow responsible advertising to flourish”.
Together, the ASA and CAP say that they are committed to regulating in a way that is “transparent, proportionate, targeted, evidence-based, consistent and accountable”.
In their “Commitment to Good Regulation” the regulators set out six commitments, modelled on the Government’s Regulators’ Code, and some of the practical ways in which they make those commitments a reality through their day-to-day work.
Like the Regulators’ Code, the regulators’ commitments do not detract from their core purpose to ensure that all UK ads are responsible. It remains important, they say, for them to continue to strike the right balance between those they regulate and those they protect.
The regulators’ six commitments are to:
- keep regulatory burdens to a minimum;
- engage with advertisers and consumers;
- be targeted;
- share information;
- provide advice and training support; and
- be transparent.
To read the press release in full and for a link to the “Commitment to Good Regulation” document, click here.
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