Slides from my presentation at the Bird & Bird TechLaw Day in London on 10 October 2017

1. Internet and eCommerce Law
Review 2017
Annual TechLaw Update @cyberleagle
London, 10 October 2017 www.cyberleagle.com
Graham Smith
Partner, Bird & Bird LLP

2. Review of 2017
Crossing internet borders
Digital copyright
Online intermediary obligations
Investigatory Powers Act
Bird & Bird LLP
Slide 2

3. Crossing internet borders
(1) Geo-blocked content services
Bird & Bird LLP
Slide 3

4. EU Content Portability Regulation
Applicability
• Adopted 14 June 2017, in force 1 April 2018
• Portable (non-location-specific) online content services
- VoD, online TV, music streaming, online games, e-books etc
- Streaming, downloading, apps
Consumer subscriber resident in a MS
• Access to home MS service when temporarily elsewhere within EU
Provider obligations
• Mandatory for a service against payment of money
- No additional charge permitted
- Quality of service information provision
- Verify MS of subscriber's residence on making/renewing contract
• max 2 of 8 methods (rights owners may waive verification)
• Opt-in for providers of free services (inc. licence funded PBS)
- Subject to residence verification procedure
• No contracting out; Regulation overrides third country choice of law
Copyright and other rights
• Provision, access and use deemed to be in subscriber's MS of residence
Bird & Bird LLP
Slide 4

5. Crossing internet borders
(2) Worldwide remedies for local wrongs
Bird & Bird LLP
Slide 5

6. Competing narratives
Global medium requires global remedy
v
Magnified extraterritorial effect of remedy dictates
judicial self-restraint
Bird & Bird LLP
Slide 6

7. "The problem in this case is occurring online and
globally. The Internet has no borders — its natural
habitat is global. The only way to ensure that the …
injunction attained its objective was to have it apply
where Google operates — globally"
Supreme Court of Canada, Google v Equustek, June 2017
Bird & Bird LLP
Slide 7

8. "ARTICLE 19: Equustek
"…an attempt to protect intellectual property rights in
Canada did not justify an order enlisting a third party to
interfere with the right to freedom of expression of every
information seeker in the world"
Bird & Bird LLP
Slide 8

9. "in order to be effective, delisting must be carried
out on all extensions of the search engine"
CNIL, June 2015 (RTBF)
Bird & Bird LLP
Slide 9

10. Right to be forgotten - territoriality
Google v CNIL
French Conseil d'Etat, CJEU reference
1. Does delisting have to be carried out worldwide on all national extensions of
the search engine, wherever the search is launched?
2. If No, delisting only on the domain name of the State of the request or all the
search engine's EU Member State national extensions?
3. If No (to 1st question) must the search engine also geoblock search results
from an IP address in the State where the request was made or in any EU
Member State?
(paraphrased)
Bird & Bird LLP
Slide 10

11. Australia, confidential information
X v Twitter Inc (28 Sept 2017)
Injunction:
1. Restrain from publishing anywhere in the world information contained in or
referred to in certain identified tweets
2. Remove said information from the Twitter platform and websites everywhere
in the world
3. Remove certain user accounts (to extent known to Twitter) everywhere in the
world
(paraphrased)
Bird & Bird LLP
Slide 11

12. Digital copyright
Communication to the public and linking
Bird & Bird LLP
Slide 12

13. Communication to the public
Pirate Bay (CJEU, C-610/15, 14 June 2017)
● 'Magnet' links constitute act of communication
● Pirate Bay sufficiently involved to be a primary infringer in respect of user-submitted
links
"… intervene, with full knowledge of the consequences of their conduct, to provide
access to protected works, by indexing on that platform torrent files which allow
users of the platform to locate those works and to share them within the context of
a peer-to-peer network.
… without the aforementioned operators making such a platform available and
managing it, the works could not be shared by the users or, at the very least,
sharing them on the internet would prove to be more complex. … They can … be
regarded as playing an essential role in making the works in question available."
● Not a mere 'physical facility' – links indexed and categorised
Bird & Bird LLP
Slide 13

14. Communication to the public
Filmspeler (CJEU, C-527/15, 26 April 2017)
● Sale of multimedia player with pre-installed add-ons containing links to
infringing films on websites
● Act of communication - not mere physical facilities
"Mr Wullems, with full knowledge of the consequences of his conduct, pre-installs
… add-ons that specifically enable purchasers to have access to protected works
published — without the consent of the copyright holders of those works — on
streaming websites and enable those purchasers to watch those works on their
television screens.
That intervention enabling a direct link to be established between websites
broadcasting counterfeit works and purchasers of the multimedia player, without
which the purchasers would find it difficult to benefit from those protected works,
is quite different from the mere provision of physical facilities …
… the streaming websites at issue in the main proceedings are not readily
identifiable by the public and the majority of them change frequently."
Bird & Bird LLP
Slide 14

15. Communication to the public
Thumbnails III (German BGH, 21 September 2017)
● Google Image Search – links to infringing photos in search results
● GS Media (CJEU):
• 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
● BGH held presumption of knowledge not applicable to search engines
• Particular importance of search engines for functioning of internet
Bird & Bird LLP
Slide 15

16. Digital copyright
Temporary copies
Bird & Bird LLP
Slide 16

17. Temporary copies
Filmspeler (CJEU, C-527/15, 26 April 2017)
● Sale of multimedia player with pre-installed add-ons containing links to
infringing films on websites
● Do users infringe copyright when they watch infringing films online?
• Temporary copies exception: "sole purpose of enabling a lawful use of a
work or protected subject matter"
● Yes: ".. having regard, in particular, to the content of the advertising of the
multimedia player…, that the main attraction … for potential purchasers is
the pre-installation of the add-ons concerned, … it is, as a rule, deliberately
and in full knowledge of the circumstances that the purchaser of such a player
accesses a free and unauthorised offer of protected works."
Bird & Bird LLP
Slide 17

18. Online intermediary obligations
Bird & Bird LLP
Slide 18

19. Online intermediary obligations
Pornographic websites
● Digital Economy Act 2017 – age verification obligation
● Age Verification Regulator
• Non-compliant sites - blocking notices to ISPs
Social media platforms
● Digital Economy Act 2017 – Code of practice
● Guidance on how to address conduct that:
"involves bullying or insulting the individual, or other behaviour likely to
intimidate or humiliate the individual"
Site blocking injunctions
● First live streaming server injunction FAPL v BSkyB (May 2017)
● Repeated with modifications (July 2017)

20. Online intermediary obligations
Commission Communication 'Tackling Illegal Content Online"
● Voluntary guidelines (cf Article 15 ECD)
● Coherent pan-EU approach
● Hosts/platforms (not search engines?)
● Terrorism to defamation
● Notice and action: takedown/staydown
● Trusted flaggers
• From law enforcement to copyright owners
• Certification, standards
● Automated removal v human involvement
● Transparency (hosts)
● "proactive in weeding out illegal content, preventing its reappearance…"
● Filtering
● Good Samaritan

21. Online intermediary obligations
German hate speech law
● 24 hour removal
Proposed Copyright Directive
● Article 13 – filtering
Article 15 ECD and Brexit
● No general monitoring obligation
Bird & Bird LLP
Slide 21

22. Investigatory Powers Act
Bird & Bird LLP
Slide 22

23. Current status of Investigatory Powers Act
● Royal Assent 29 November 2016
● Communications data retention partially in force 30 December 2016
● Investigatory Powers Commissioner from 1 September 2017
• Sir Adrian Fulford
● Rest of the Act
• Autumn 2017, early 2018?
Bird & Bird LLP
Slide 23

24. Overview of #IPAct powers
300 page Act
● Interception warrants
• Bulk, targeted, thematic; Content and ‘secondary’ data
● Equipment interference (hacking) warrants
• Bulk, targeted, thematic; Content and ‘equipment’ data
● Communications data acquisition and disclosure
• Bulk warrants, targeted notices + request filter
● Mandatory communications data retention notices
• Browsing histories (Internet Connection Records)
● Technical capability notices
• E2E encryption
● National security notices
● Bulk personal dataset warrants

25. Interception offence (IPAct S.3)
Interception
● New definition of 'content'
● Extended meaning of 'in the course of transmission'
● Broader purposes for which service providers have lawful authority
Slide 25
Bird & Bird LLP

26. Interception offence
Interception (S. 4)
● Modify or interfere with the system or its operation
● Monitor transmissions made
• by means of the system
• by w/t to or from apparatus part of the system
"… [so as] to make any content of the communication available, at
a relevant time, to a person who is not the sender or intended
recipient of the communication."
Slide 26
Bird & Bird LLP

27. Interception offence – 'content'
Content (versus metadata)
Slide 27
Bird & Bird LLP

28. Interception offence
Real time and stored communications
● In the course of its transmission
• Current RIPA:
- "used for storing it in a manner that enables the intended
recipient to collect it or otherwise to have access to it"
- Coulson & Anor v R [2013] EWCA Crim 1026
• IPAct
- Any time when stored in or by system (whether before or after
transmission)
Slide 28
Bird & Bird LLP

29. Interception offence – lawful authority
Service provider lawful authority (S.45)
● Purposes relating to
• Provision/operation of service
- Identifying, combating, preventing…
• Enforcement of enactment relating to
- use of service
- content of communications transmitted
• Provision of services/facilities aimed at preventing or restricting
viewing or publication of content of communications
Lawful Business Practice Regulations (S.46)
Slide 29
Bird & Bird LLP

30. Legal challenges
CJEU
• Tele2/Watson judicial review of S.1 DRIPA data retention
- Judgment 21 December 2016
- Back to Court of Appeal (2 DRIPA aspects conceded)
• Passenger Name Records (EU-Canada) (26 July 2017)
• Privacy Shield CJEU challenges to bulk powers (x2)
• Irish Schrems case on Standard Contractual Clauses
Investigatory Powers Tribunal cases
• Judicial review of thematic hacking warrants case
• Further Watson CJEU reference from IPT – national security
ECtHR
• 10 HROs v UK (TEMPORA/PRISM – bulk powers and sharing)
UK - IPAct
• Liberty judicial review of data retention/bulk powers
• Post-BREXIT data protection adequacy decision?

31. Finally…
Bird & Bird LLP
Slide 31

32. ● Copyright:
• Internet making available – Renckhoff (CJEU)
• Ebooks digital exhaustion – Tom Kabinet (CJEU)
• Remote PVR – VCAST (CJEU)
• Exceptions and fundamental rights – Afghanistan Papers (CJEU)
● Site blocking injunctions (compliance costs) – Cartier (UKSC)
● Information Society Services – Uber I, Uber II (CJEU)
● EU Digital Single Market – proposed legislation
● EU AudioVisual Media Services Directive review
● Tort jurisdiction, Art 5(3)/7(2) – Ilsjan (CJEU)
● Proposed EU Directive on free flow of non-personal data
● US-UK negotiations on direct LE/agency cross-border access to data
● Revised EU ePrivacy Directive
● Defamation: Trkulja v Google/Duffy v Google?
● Internet Safety Strategy Green Paper
● Digital Charter?
Also looking forward to...
Slide 32
Bird & Bird LLP

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Graham Smith
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@cyberleagle