Last year was a busy year for cyberlaw. But what does 2014 hold? Graham Smith of the Cyberleagle blog looks at legal developments in which are presently in the UK and EU pipeline and will take effect in 2014.
1. Defamation Act 2013. This legislation came into force on Wednesday 1 January 2014.
- It provides website operators with complete defamation immunity for identifiable third party posts and qualified protection for anonymous posts.
- As a result of the 2009 European Court of Human Rights judgment in the Times Newspapers internet archive case we will now have a single publication rule which puts an end to rolling limitation periods for online defamation.
- The new ‘booksellers defence’ bars defamation actions against secondary publishers unless it is not reasonably practicable to proceed against the author, editor (if any) or commercial publisher (if any). This will include online intermediaries.
- There will now be a bar on proceedings against non-European defendants, unless of all places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action. While this is framed as a general restriction on forum-shopping, it will be especially relevant to actions founded on the mere accessibility in England and Wales of a foreign internet publication.
The Act does not apply to Northern Ireland, nor do the provisions discussed apply to Scotland.
2. New copyright exceptions. Following the Hargreaves Report new and amended copyright exceptions are slated to come into force on 6 April 2014. These will cover archive & preservation, quotations, educational use, disabled access, private study, text and data analytics, parody and private copying (format shifting). Draft statutory instruments for all these were published for technical review during 2013. Separately, new provisions for orphan works, extended collective licensing schemes and regulation of collecting societies are in the pipeline. And don’t forget the European Commission’s Public Consultation on its review of EU copyright rules, which closes on 5 February 2014.
3. Blocking orders. Constantin Films v UPC is pending in the CJEU. This is a case on copyright blocking orders. The Advocate General issued his Opinion on 26 November 2013. In the continuing absence of an English version, here are the Court’s Press Release and my summary of the Opinion. A judgment during 2014 is likely.
4. Copyright and linking. Three cases pending before the CJEU are about whether various types of linking can infringe the copyright communication to the public right. These are Svensson, C More Entertainment and BestWater. BestWater has been stayed pending Svensson, which appears to be heading towards judgment, probably during 2014, without the benefit of an Advocate General’s Opinion. Svensson has provoked two bodies, the European Copyright Society and the International Literary and Artistic Association (ALAI), to issue conflicting opinions on how linking issues should be decided. Also look out for Football Dataco v Stan James in the UK Supreme Court, a database right case under appeal on the question of joint liability.
5. Online copyright jurisdiction. Pez Hejduk is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement. Most likely it will regard Pinckney as having already answered the Pez Hejduk questions. Also look out for Blomqvist, a CJEU case which has online aspects concerning the territoriality of the copyright distribution right and of trade marks.
6. Intermediary liability. Papasavvas, another pending CJEU reference, asks questions about the scope of the Electronic Commerce Directive provisions on internal market and intermediary liability. The internal market questions look very similar to those already answered in eDate/Martinez. Some aspects of the intermediary liability questions may provide the CJEU with an opportunity to comment on the Delfi decision of the European Court of Human Rights.
7. Copyright and temporary copies The pending NLA v PRCA reference to the CJEU should determine whether a user’s web browsing is an activity that requires the permission of the copyright owner. The UK Supreme Court thought not, but decided that the question required an EU-wide answer from the CJEU.
8. PRISM, TEMPORA, Snowden. Watch out for the legal challenges launched by various public interest groups following the Snowden revelations. These include two applications (by Liberty and Privacy International) to the Investigatory Powers Tribunal and a case taken (by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz) direct to the European Court of Human Rights.
9. The saga of the Digital Economy Act 2010. The May 2013 Online Infringement of Copyright Roundtable minutes state that letters are not contemplated to start going out until ‘the latter half of 2015’. None of the necessary cost sharing statutory instruments has yet been laid before Parliament, a Treasury approval mechanism seems to be in play, and there is a General Election between now and then. It could cost participating rightsowners collectively up to £10 million (to March 2015) in OFCOM cost sharing charges to take it forward.
This post originally appeared on the Cyberleagle Blog and is reproduced with permission and thanks