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December 22, 2014
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European Commission publishes 2015 Work Programme.
European Economic and Social Committee publishes Opinion on strategy for protection and enforcement of intellectual property rights in third countries.
Binding agreement made between Government and mobile networks to tackle poor signal issues in partial “not-spots”.
Ofcom consults on proposal to make regulations to amend existing Wireless Telegraphy licence exemption criteria for Ultra Wideband (UWB) devices.
Ofcom publishes data from tests examining co-existence between Digital Terrestrial Television services (DTT) and White Space Devices (WSDs).
Court of Justice of European Union finds Data Protection Directive applies to recordings made by personal CCTV camera directed towards public footpath unless data controller has legitimate interest.
Coalition of 23 privacy authorities from around world sign open letter to operators of mobile app marketplaces urging them to adopt privacy policies for all apps that collect personal information.
World Intellectual Property Organisation discusses possible treaty to protect intellectual property rights of broadcasters.
Ofcom publishes consultation as part of review of pay-TV “wholesale must-offer” remedy.
Ofcom publishes consultation on its third review of public service broadcasting.
Government makes Legislative Reform (Entertainment Licensing) Order 2014.
Alternative press regulator IMPRESS announces inaugural Board.
European Economic and Social Committee adopts Opinion on European Film in Digital Era.
Ofcom publishes review confirming that the Advertising Standards Authority will continue as co-regulator of advertising included in on-demand programme services (ODPS).
Committee of Advertising Practice publishes gambling advertising review.
ASA finds Ebuyer’s “Free next day delivery” promotion contradicted rather than qualified by a minimum spend and other conditions.
European Commission publishes 2015 Work Programme.
The Commission has adopted its Work Programme for 2015, setting out actions the Commission intends to take over the next 12 months to “make a real difference for jobs, growth and investment and bring concrete benefits for citizens”.
The 2015 Work Programme sets out 23 new initiatives together with 80 existing proposals that the Commission proposes to withdraw or amend for political or technical reasons. In addition, the Commission says it will continue to “work hard” to ensure that existing policies and rules are fit for purpose.
One of the 23 new initiatives that the Commission has committed to delivering is an “Ambitious Digital Single Market Package”, which will create the conditions for “a vibrant digital economy and society”. The Commission says it will achieve this by “complementing the telecommunications regulatory environment, modernising copyright rules, simplifying rules for consumers making online and digital purchases, enhancing cyber-security and mainstreaming digitalisation”.
As far as data protection is concerned, the Commission says that the aim is to conclude ongoing inter-institutional negotiations on the European data protection reforms.
The Commission also wants to conclude negotiations on its proposed Regulation on a Connected Continent
In addition, the Commission says that it will be simplifying the Comparative Advertising Directive (2006/114/EC) as part of its REFIT programme, which is the Commission’s “Regulatory Fitness and Performance Programme” designed to make EU law simpler and to reduce regulatory costs. This will, the Commission says, “simplify and streamline the scope of protection in business-to-business transactions”. The aim of the simplification process will be to address the problem of misleading online/distance communication marketing practices. The Commission says that, for SMEs, the expected benefit will amount to €419 to €477 million per year by reducing the costs of tackling misleading marketing practices.
As part of the REFIT programme, the Commission also says that it will evaluate the E-Privacy Directive (2002/58/EC), following agreement on the data protection proposals, as well as the Audiovisual Media Services Directive (2010/13/EU) and the Telecoms Package of 2009. These are ongoing projects, however, and not expected to end until 2016.
The Commission says it will also be evaluating the Commercial Agents Directive (86/653/EEC) and the Late Payment Directive (2011/7/EU), as well as undertaking a fitness check of the legislative framework related to consumer rights and advertising. To access the 2015 Work Programme documents, click here.
European Economic and Social Committee publishes Opinion on strategy for protection and enforcement of intellectual property rights in third countries.
In July 2014, the European Commission published its strategy on the protection and enforcement of IP rights in non-EU countries. It subsequently consulted the EESC on the strategy.
In its Opinion, the EESC says that it endorses the strategy. In particular, it supports the Commission’s approach to combating counterfeiting in third countries, which it sees as a priority (‘third country’ is the Commission’s term for a non-EU country).
The EESC considers that the new approach towards third countries will strike a balance between maintaining European aid and making provision for sanctions in cases of proven fraud. However, it states that “under no circumstances” should local populations suffer any reduction in particular forms of EU funding.
The EESC stresses the need to raise awareness in both Europe and third countries so that people are better informed about the consequences of IP rights infringements. The luxury goods sector is not the only one to have been hit by counterfeiting, it says.
The EESC says that it is “convinced” that, alongside international agreements on the protection of IP rights, the signature of bilateral trade agreements combined with technical assistance for third countries, remains “the best instrument for upholding the rights of the various parties”.
The EESC says that it is in favour of what it calls the “follow the money” approach to IPR taken by the Commission at EU level, but wonders how effective it really is.
Finally, the EESC says that, having failed to raise public awareness of the importance of upholding intellectual property rights, the Commission should “take new measures to put this right”. For a link to the Opinion, click here.
Binding agreement made between Government and mobile networks to tackle poor signal issues in partial “not-spots”.
The Government has entered into a binding agreement with EE, O2, Three and Vodafone, under which the mobile networks have agreed to:
- a guaranteed £5 billion investment programme to improve mobile infrastructure by 2017;
- guaranteed voice and text coverage from each operator across 90% of the UK geographic area by 2017, halving the areas currently blighted by patchy coverage as a result of partial “not-spots”;
- full coverage from all four mobile operators will increase from 69% to 85% of geographic areas by 2017;
- provide reliable signal strength for voice for each type of mobile service (whether 2G/3G/4G) to prevent consumers losing signal or not getting enough signal to make a call; and
- make the deal legally binding by accepting amended licence conditions to reflect the agreement, which will be enforceable by Ofcom.
No cash payments will be made by Government to the mobile networks as part of this agreement.
The Government says that the deal will also result in cutting total “not-spots” where there is currently no mobile coverage by two-thirds. This is to support the Government’s existing £150 million programme to take mobile coverage to the areas of the UK that have no coverage at all.
As part of the agreement, the Government:
- will ask Ofcom to consider the agreement in the context of its work to revise Annual Licence Fees, i.e. the subscription fee mobile networks pay the Government;
- intends to reform the outdated and ineffective Electronic Communications Code to make it easier for the whole communications sector to rollout out new mobile and broadband services and increase choice for consumers; and
- is allowing many of the Government’s freehold buildings to be used as sites for mobile infrastructure.
To read the Government’s press release in full, click here.
Ofcom consults on proposal to make regulations to amend existing Wireless Telegraphy licence exemption criteria for Ultra Wideband (UWB) devices.
UWB devices use very large bandwidth and are able to transmit high data rates over short distances, but they transmit at very low power levels so do not interfere with other devices.
UWB uses include wireless multi-media applications, such as streaming videos and connecting cameras to TVs, as well as radar and detection devices, which can be used to sense objects behind walls.
The regulations would implement a European Commission decision on UWB devices, which harmonises the technical parameters for equipment across all European Member States.
The consultation closes on 20 January 2015. To access the consultation documentation, click here.
Ofcom publishes data from tests examining co-existence between Digital Terrestrial Television services (DTT) and White Space Devices (WSDs).
Ofcom says that the data will help it design rules for the future operation of WSDs to help prevent harmful interference with DTT, such as Freeview.
Ofcom is currently piloting a new type of technology called dynamic spectrum access. Use of dynamic spectrum access technology could allow WSDs to use the same spectrum as DTT and users of wireless microphones in the programme making and special events (PMSE) sector, but at frequencies, locations and times which mean that existing users would not be adversely affected.
The testing described in this latest report includes tests conducted in controlled laboratory conditions and live field tests carried out in homes.
The tests are one part of this pilot, which also includes:
- similar tests in relation to the potential of interference from WSDs into PMSE;
- tests of processes, software and databases required to make the technology work; and
- trials of services using WSDs.
Ofcom currently expects to publish a statement in early 2015, setting out plans for implementing the use of WSDs in the UHF TV band. This will also draw on the evidence collected in its on-going TV white space trials and other relevant evidence provided by industry. To access the data, click here.
Court of Justice of European Union finds Data Protection Directive applies to recordings made by personal CCTV camera directed towards public footpath unless data controller has legitimate interest.
Mr Ryneš, a Czech national, and his family were the victims of a number of attacks by unknown persons on the family home. In response, Mr Ryneš installed a surveillance camera on the house, which filmed the entrance to the house, the public footpath outside the house and the entrance to the house opposite. One night in October 2007, a window of the family home was broken. The recordings made by the camera were handed to the police who identified two suspects who were subsequently prosecuted.
One of the suspects disputed the processing of the data recorded by Mr Ryneš’s camera and the Czech Data Protection Office found that Mr Ryneš had indeed infringed data protection rules by recording the suspect on a public footpath. Mr Ryneš was fined.
Mr Ryneš appealed to the Czech Supreme Administrative Court, which asked the CJEU whether the recordings made by Mr Ryneš for the purposes of protecting the life, health and property of his family constituted an infringement of the Data Protection Directive (95/46/EC) or not.
The CJEU noted that the Directive does not apply to the processing of data carried out for purely personal or household activities. However, it found also that the image of a person recorded by a camera constituted personal data since it made it possible to identify the person concerned.
Similarly, the CJEU found, video surveillance involving the recording and storage of personal data fell within the scope of the Directive, since it constituted automatic data processing.
The CJEU also found that the exception set out in the Directive, that data processing carried out for purely personal or household activities was not covered by the rules, had to be construed narrowly. Accordingly, video surveillance that covered a public space and which was directed outwards from a private setting was not a purely personal or household activity.
However, the CJEU said that, in applying the Directive, the national court also had to consider the legitimate interests of the person processing the personal data in protecting the property, health and life of his family and himself. One of the situations in which the processing of personal data is permissible without the consent of the data subject, the CJEU said, is where it is necessary for the purposes of the legitimate interests of the data controller. Further, there is no need to inform the data subject of the processing of his personal data where the provision of such information proves impossible or would involve a disproportionate effort. Finally, the CJEU said, under the Directive, Member States can restrict the scope of the obligations and rights under the Directive if such a restriction is necessary to safeguard the prevention, investigation, detection and prosecution of criminal offences, or the protection of the rights and freedoms of others. (Case C-212/13 František Ryneš v Úřad pro ochranu osobních údajů (11 December 2014) – to access the judgment in full, go to the curia search form, type in the case number and follow the link).
Coalition of 23 privacy authorities from around world sign open letter to operators of mobile app marketplaces urging them to adopt privacy policies for all apps that collect personal information.
The letter was sent to key players operating app marketplaces, but states that the advice and recommendations it contains “are intended for all stakeholders that operate an app marketplace”. Essentially, the letter urges such organisations to make links to privacy policies mandatory for apps that collect personal information.
The letter notes that the lack of privacy policies for apps that collect personal information means that individuals do not have the ability to be meaningfully informed when making decisions about the collection, use, and/or disclosure of their personal information. While most marketplaces allow app developers to include a link to a privacy policy, this is not a mandatory practice, the letter states.
Given the wide-range and potential sensitivity of the data stored in mobile devices, the coalition members say that they “firmly believe that privacy practice information (for example, privacy policy links) should be required (and not optional) for apps that collect data in and through mobile devices within an app marketplace store”.
In the coalition’s view, an app marketplace operator should “make the basic commitment to require each app that can access or collect personal information, to provide users with timely access to the app’s privacy policy”. To read the letter in full, click here.
World Intellectual Property Organisation discusses possible treaty to protect intellectual property rights of broadcasters.
From 8 to 12 December, the WIPO Copyright Committee held its last meeting of 2014 on IP rights-related topics.
The WIPO Standing Committee on Copyright and Related Rights (SCCR) allocated an important amount of its schedule to a potential treaty protecting the IP rights of broadcasting organisations.
Discussions revolved around three technical documents: concepts; object of protection; and rights to be granted to broadcasters. It was decided that more work was needed, as views were still divergent, and there was also a need for technical expertise. Accordingly, technical experts, with an emphasis on experts from developing and least-developed countries, will be invited for a half-day information session at the next session of the SCCR. For further information, click here.
Ofcom publishes consultation as part of review of pay-TV “wholesale must-offer” remedy.
The review will determine whether regulation requiring Sky to offer its Sky Sports 1 and 2 channels to other pay TV providers to ensure fair and effective competition in the UK’s pay TV sector remains appropriate.
In 2010, Ofcom imposed an obligation requiring Sky to offer to wholesale Sky Sports 1 and 2 at prices set by Ofcom. This was designed to deliver choice and innovation to consumers through greater competition.
Ofcom said in 2010 that it would review the obligation after three years in light of developments in the market. In April 2014, Ofcom announced it was commencing this review.
Ofcom will consider responses to the consultation and any further steps will be outlined in a second phase of the review in 2015. The consultation closes on 27 February 2015. To read Ofcom’s press release and to access the consultation documentation, click here.
Ofcom publishes consultation on its third review of public service broadcasting.
Ofcom’s review examines how the BBC, ITV, STV, UTV, Channel 4, Channel 5 and S4C have fulfilled the purposes of public service broadcasting since Ofcom’s 2008 review.
Ofcom’s initial view is that PSB is performing well despite falls in both programme spend and viewing.
In research published alongside the consultation, audiences told Ofcom that PSB was meeting their needs with 77% of viewers satisfied with the PSB channels, up from 69% in 2008. Viewers said they valued the PSB purposes highly and were increasingly taking advantage of high definition and on-demand programmes and watching TV across a range of devices. Viewing to the main PSB channels accounted for over half of all TV viewing in the UK in 2013, although falling from 60.8% in 2008. If the PSB’s ‘+1’ channels are taken into account, the combined viewing share of the PSBs was 58.7% in 2013.
Overall investment in original, first-run programmes from the PSB channels fell by 17.3% between 2008 and 2013, to £2.41 billion. However, the impact on range and quality of programmes was unclear as overall audience satisfaction remained high and the volume of new shows during peak time viewing increased by 1.1% over the five years.
Ofcom notes that the UK media and communications industry has undergone significant change since 2008, driven by the completion of digital switchover, the rise in online TV viewing and the rapid take-up of connected and mobile devices.
There has been increased programme spend from providers other than the PSB channels between 2008 and 2013, including both the PSB’s commercial portfolio channels and multichannel broadcasters. If current trends continue, Ofcom’s view is that the PSBs should be able to maintain current levels of delivery and output. However, ongoing changes in the sector could present both opportunities and challenges for PSB:
- a faster shift from live TV to on-demand viewing could reduce the reach of the PSBs. Alternatively, it could help PSBs better meet audience needs through greater convenience and access to archive programmes;
- new entrants, including “over-the-top” online video services such as Netflix and Amazon, are competing with traditional broadcasters. Increased competition could reduce audience share and revenues for the PSBs. However, it could also stimulate greater innovation and better quality programmes;
- demographic changes in the UK, particularly differences between younger and older audiences, are potentially challenging for the PSBs. While a failure to respond may result in falling viewing share, innovation and increasing use of on-demand may allow better targeting of distinct audience groups;
- the BBC licence fee and TV advertising are key sources of funding for PSBs. A significant reduction in either would need to be offset by further efficiencies or by creating new sources of revenue; and
- a significant increase in TV production costs could lead to a reduction in the range, volume or quality of PSB programmes if funding is not maintained.
Ofcom has also considered what could be done if challenges to the PSB system emerge. The consultation identifies four key areas for further consideration:
- If Parliament wants to ensure PSB content has universal reach, current regulation around channel prominence and carriage may need to be reformed. Does ‘universal’ availability need to be redefined in an increasingly connected world?
- The PSBs may need greater flexibility in choosing how they deliver public service content, including online, on demand and on mobile. Should the PSBs be regulated by organisation rather than by individual channel?
- Following significant consolidation in the production sector, is the current regulation of relations between broadcasters and the independent production sector still appropriate?
- Are there changes to regulatory or other arrangements that could help maintain and strengthen public service broadcasting ? These could include retransmission fees, relaxing TV advertising rules or considering new tax breaks to encourage investment for example.
Ofcom, which has also published its public service broadcasting annual report 2014, is seeking views on its initial findings. A final statement on the PSB review will follow in summer 2015. To access the consultation documentation and annual report, click here.
Government makes Legislative Reform (Entertainment Licensing) Order 2014.
The Order amends the Licensing Act 2003 so that, in certain circumstances, the provision of regulated entertainment may no longer need to be authorised.
Specifically, the Order extends the exemption in paragraph 12A of Schedule 1 to the 2003 Act (which at present is limited to performances of live music) so that it also exempts the playing of recorded music where the specified conditions are satisfied. Equivalent amendments are made so that the suspension of any licence condition that relates to live music also applies to licence conditions that relate to recorded music or to both live and recorded music.
Article 2(3) of the Order amends the 2003 Act by raising the maximum number of persons in the audience from 200 to 500 for both the exemption in paragraph 12A of Schedule 1 and the suspension of licence conditions.
Article 3(2) of the Order extends the existing exemption relating to incidental music in the 2003 Act so that it also covers incidental film.
The Order also introduces exemptions for hospitals, local authorities and schools, and states that no authorisation is required under the Act in respect of various entertainments put on by a travelling circus, provided the specified conditions are met.
Finally, the Order provides that no authorisation is required under the Act for a contest, display or exhibition of Greco-Roman wrestling or freestyle wrestling, provided the specified conditions are met.
The Order will come into force on 6 April 2015. To access the legislation, click here.
Alternative press regulator IMPRESS announces inaugural Board.
The first Board members of IMPRESS, the Independent Monitor for the Press, have been revealed. They will join Walter Merricks CBE, whose appointment as the first Chair of IMPRESS was announced in November, to launch the new organisation, which will introduce what it calls “the first ever system of independent and effective press regulation”.
The Board members are Deborah Arnott, former broadcast journalist and now Chief Executive of the charity ASH; Iain Christie, barrister and Secretary of the Civil Mediation Council; Sue Evison, former Chief Feature Writer of The Sun; Máire Messenger Davies, former journalist and now Professor of Media Studies at the University of Ulster; David Robinson, Founding CEO of the life insurance company Bright Grey; and Patrick Swaffer, President of the British Board of Film Classification.
Walter Merricks, Chair Designate of IMPRESS, said: “This is a hugely impressive group of people. They bring great experience in the fields of journalism, law, business development, non-profit leadership and media regulation, which will be vital to IMPRESS as we take the organisation forward in 2015. I am very much looking forward to working with all of them”. To read the IMPRESS press release in full and for more information on IMPRESS generally, click here.
European Economic and Social Committee adopts Opinion on European Film in Digital Era.
The Opinion is an “own-initiative” Opinion and was adopted by the EESC on 10 December 2014.
The Opinion refers to the European Commission’s Communication on “European film in the digital era – Bridging cultural diversity and competitiveness”, which it says it welcomes and “rightly raises some points for discussion and reflection concerning this very important sector in Europe”.
The EESC emphasises that there needs to be an appropriate balance between the audiovisual sector’s value in a business and commercial sense and its value to Europe from a cultural heritage perspective. These two aspects cannot be dealt with separately, it says.
According to the EESC, “it is high time that one or more innovative and new business models for the sector be openly discussed with a view to taking up opportunities existing within the digital world”. It therefore encourages the sector, the Commission and national governments to be “open and willing to discuss and promote such business models”.
In particular, the EESC says, the area of financing needs to be looked into. Competitiveness must be sought, but not at the cost of the cultural dimension of film in Europe. Finance is primarily up to the Member States, it says, but an open debate on methodologies to ensure that financing is maximised and to find alternative methods of financing is necessary. This includes: public funding to attract private funding; a more rational use of public resources and complementarity between EU and Member State funding; and private funding from new players such as internet providers and telecoms companies.
Strengthening the creative environment should also be a “key priority” for the sector. This should be specifically addressed within the Commission communication and should cover the educational environment, the working conditions of people within the sector, the development of creative talent, creative expression, how to add value and European film literacy and language.
The EESC endorses the idea that the audience should be at the heart of discussions about the audiovisual sector, as “they are not only the beneficiaries but often also the ones who shape trends and hence lead development”. Film literacy is an important aspect in encouraging more Europeans to appreciate and seek out European films. The EESC therefore recommends that the promotion of film literacy be taken up at both European and national level.
Further, the EESC says, greater emphasis should be placed on data collection at European level for a better understanding of the industry.
Accessibility is another area in which the EESC believes greater effort should be made. Research and innovation should be aimed at overcoming barriers such as language and disability. To read the EESC Opinion in full, click here.
Ofcom publishes review confirming that the Advertising Standards Authority will continue as co-regulator of advertising included in on-demand programme services (ODPS).
In 2010, Ofcom designated the ASA to ensure ODPS advertising complied with the standards set out in the Audiovisual Media Services Directive (2010/13/EU), which is implemented by the Communications Act 2003. As part of the legislation, Ofcom had to review the ASA’s performance once within its ten-year designation.
The review contains evidence submitted by the ASA and other interested parties and draws on Ofcom’s own experience of dealing with the ASA over the first few years of the designation.
Ofcom has concluded that the ASA has been satisfactorily carrying out its designated functions and it is content for it to continue to regulate advertising as co-regulator for regulated ODPS, under the terms of the designation. To read the review, click here.
Committee of Advertising Practice publishes gambling advertising review.
CAP, together with BCAP, has published “CAP and BCAP Gambling Review – An assessment of the regulatory implications of new and emerging evidence for the UK Advertising Codes”, which looks at the impact of gambling advertising on young people and problem gambling behaviour.
The evidence shows that the impact of gambling advertising on these areas is limited. CAP and BCAP say that they are “confident that the strict content and scheduling rules in place set the right level of protection for young and vulnerable people”.
The Review was launched in response to a request by the Department for Culture Media and Sport and forms part of a multi-agency process looking at how gambling is advertised. The work by CAP and BCAP follows independent research findings published earlier this year by the ASA, which showed that the ASA’s decisions on complaints around gambling ads met societal expectations.
CAP says that, given changes to the market and legitimate concerns around gambling’s proper place in society, gambling advertising will continue to be an area of focus and it will be “working proactively” to ensure that gambling advertising remains responsible. This includes:
- producing enhanced guidance for advertisers;
- working with academics and other experts to ensure the rules continue to identify and address the particular risks and vulnerabilities associated with gambling advertising; and
- working with fellow regulators to expand and improve the evidence base.
For a link to the Review, click here.
ASA finds Ebuyer’s “Free next day delivery” promotion contradicted rather than qualified by a minimum spend and other conditions.
An email for an online electronic equipment store was headed “FREE NEXT DAY DELIVERY ON ALL OF YOUR ORDERS THIS MONTH*”. Text underneath stated “Offer ends on 31 October 2014 at midnight. Some products are not available for next day delivery. Location and weight restrictions apply. Excludes Paypal purchases.”
Following a complaint that the claim was misleading because a number of conditions and exclusions applied, the ASA found that the accompanying small print, which included restrictions on location and weight, the exclusion of PayPal purchases, free delivery only available for spend over £49.99 and restrictions to delivery outside the UK and certain postcode areas, contradicted rather than qualified the headline claim.
The ASA also took issue with the way in which the qualifications were presented, in particular the use of a number of asterisks. For example, although further qualifying text at the bottom of the email included an asterisk, the consumer had already been presented with qualifying text at the top of the page that was linked to via an asterisk. As such, the ASA considered that consumers were unlikely to be aware that any further qualifications applied and were presented elsewhere. This was exacerbated by the fact that those additional qualifications appeared at the bottom of the email where recipients may not have been aware of them. The ASA therefore concluded that the ad breached CAP Code rules 3.1, 3.3 (Misleading advertising) 3.9 and 3.10 (Qualifications). To read the ASA’s Adjudication on Ebuyer (UK) Ltd (17 December 2014), click here.
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