Internet legal developments to look out for in 2015 – Graham Smith

Here are some EU and UK internet legal developments to look out for in 2015 (last year’s list here).  I have also provided a list of Cyberlaw Memes and Themes for 2015.

• EU copyright reform The last European Commission closed its Public Consultation on EU copyright rules on 5 February 2014. The new Commission has announced that EU copyright modernisation will be a priority for 2015, as part of a Digital Single Market package.

• Copyright Private Copying Exception On 1 October 2014 the UK introduced its new format shifting (‘personal copying for private use’) copyright exception. At the end of November three UK music industry bodies (The Musicians’ Union, The British Academy of Songwriters, Composers and Authors and UK Music) announced that they were mounting a judicial review court challenge to the legislation.   Their case is that the exception should have provided fair compensation to copyright holders and consequently does not comply with the EU Copyright Directive.

• Online copyright jurisdiction – Pez Hejduk(C-279/13) is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement under Article 5(3) of the Brussels Jurisdiction Regulation.  The Advocate General has proposed that the Court should lay down a different rule from any of those adopted in previous cases (eDate/Martinez,Wintersteiger and Pinckney): jurisdiction limited to the courts of place of the event causing the damage, with a possible exception for the place of damage where the site was clearly and incontestably targeted towards one or more other Member States.  Judgment is due on 22 January 2015.

• Copyright and linking C More Entertainment (C-279/13) is the last of a trilogy of copyright linking cases to come before the CJEU (the others were Svensson and Bestwater). A date for judgment is not yet available.

• Site blocking orders 2014 saw the most significant UK site blocking case since Newzbin2, Cartier v BSkyB. It was the first UK trade mark site blocking case, the first since Newzbin2 to be contested by the ISPs and the first in which a third party (the Open Rights Group) intervened.  Numerous points were decided in three judgments and an injunction was granted.  Two of the judgments are subject to appeals due to be heard in 2015. We can expect further site blocking applications in 2015.

• Intermediary liability The pending Delfi reference to the European Court of Human Rights Grand Chamber concerns an online newspaper’s defamation liability for readers’ unmoderated comments on editorial articles. Various NGOs and media organisations have weighed in with interventions.  The mere conduit and injunction provisions of the ECommerce Directive are the subject of a German reference to the CJEU in Case 484/14 McFadden. It concerns injunctions against providers of open wi-fi networks to prevent copyright infringement by users.

• RIPA, DRIPA and the Counter-Terrorism and Security Bill.  Clause 17of the C-TS Bill currently going through the UK Parliament will extend mandatory data retention to certain IP address resolution data, subject to the same 31 December 2016 sunset clause as DRIPA.  A legal challenge to S.1 of DRIPA by MPs David Davis and Tom Watson is under way. The High Court on 8 December 2014 granted permission to bring the judicial review application. Various current reviews of RIPA, DRIPA and other investigatory powers legislation will report during 2015. The reviews are conducted by: Independent Reviewer of Terrorism Legislation, RUSI, Intelligence and Security Committee of Parliament, and the Interception of Communications Commissioner (police acquisition of communications data to identify journalistic sources).Interception and surveillance complaints to the European Court of Human Rights include a case taken by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz and one by the Bureau of Investigative Journalism. See mindmap of legal challenges. Also look out for any further developments arising out of the Investigatory Powers Tribunal decision in December that, in the light of disclosures of interception practice made by the government in the proceedings, future use of Section 8(4) warrants and PRISM intelligence sharing would be ‘in accordance with the law’ under Article 8 of the European Convention on Human Rights. Legality prior to the government disclosures has still to be determined.

• Social media offences The Criminal Justice and Courts Bill currently proceeding through Parliament will create a new ‘revenge porn’ offence.  It will also increase the maximum penalty under the Malicious Communications Act 1988 from six months to two years imprisonment.

• Consumer Rights Act The Consumer Rights Bill currently before Parliament will, as part of a wholesale reform of consumer goods and services law, introduce a separate category of consumer contracts for supply of digital content, to which a self-standing set of implied conditions will apply.

• Data protection A new General Data Protection Regulation (perhaps). The part heard appeal in Vidal-Hall v Google (hearing to resume on 2 March 2015). The CJEU reference in Case C-362/14, Schrems v Irish Data Protection Commissioner.

This post originally appeared on the Cyberleagle blog and is reproduced with permission and thanks.