Introduction

In Brexit news this week, we report on the European Data Protection Board's Opinions on the Commission's draft UK adequacy decision, in which the EDPB acknowledges the convergence between EU and UK data protection laws, but highlights a number of areas on which it says the Commission should gather more information. The EDPB also calls for the Commission to monitor the UK's legal framework closely in the future and be ready to suspend the decision should the UK's laws diverge too much from those of the EU. Meanwhile, in the UK, the House of Commons European Scrutiny Select Committee has published a report following its inquiry on UK parliamentary scrutiny of the Withdrawal Agreement UK/EU Joint Committee and application of the Northern Ireland Protocol, in which it criticises the Government for not providing it with enough information on the Withdrawal Agreement and not doing it in a timely manner. Also this week, we report on the High Court decision to grant an order for Extended Disclosure for a preliminary issues trial in a global copyright infringement case relating to an airline's inflight entertainment system. Finally, we report on Facebook's agreement, following investigation by the Competition and Markets Authority, to take more action to tackle the trading of fake and misleading reviews.

GENERAL

House of Lords European Affairs Select Committee appointed.

The House of Lords European Affairs Select Committee has been appointed to consider matters relating to the United Kingdom's relationship with the European Union and the European Economic Area, including:

  • the implementation and governance structures of any agreements between the United Kingdom and the European Union;
  • to consider European Union documents deposited in the House by a minister; and
  • to support the House as appropriate in interparliamentary cooperation with the European Parliament and the Member States of the European Union.

The new Committee replaces the House of Lords European Union Select Committee and its remaining sub-committees. For further information, click here.

House of Commons European Scrutiny Select Committee publishes report following its inquiry on the UK parliamentary scrutiny of the Withdrawal Agreement UK/EU Joint Committee and application of the Northern Ireland Protocol.

The report finds that the UK/EU Joint Committee, which was set up to manage the Withdrawal Agreement, has considerable legal and political importance, mainly because of the Northern Ireland Protocol. The Joint Committee oversees the implementation, application and interpretation of rules under the Withdrawal Agreement, including the Northern Ireland Protocol.

The report says that the Government has provided Parliament with information about the decisions of the UK/EU Joint Committee which has been both incomplete and too late. This means that the Scrutiny Committee has not been able to exercise proper democratic scrutiny. The report repeatedly emphasises the importance of the UK/EU Joint Committee, especially as it can make legally binding decisions that concern the people and businesses of Northern Ireland.

The report finds that there is significantly more that the Government could, and should, be doing to facilitate democratic oversight. For example, it calls on the Government to provide detailed agendas ahead of UK/EU Joint Committee meetings and to make the minutes of these UK/EU meetings publicly available. The report also asks that Government analyses given to Parliament about EU legislation relevant to Northern Ireland, known as "Explanatory Memoranda", should be submitted in sufficient time and with adequate detail for it to consider them before the joint UK/EU Joint Committee takes any relevant binding decisions.

The report identifies several areas where it says it needs further and better information in order to exercise proper parliamentary scrutiny:

  • "at risk" goods: these are goods imported into Northern Ireland, but which may then be "at risk" of ending up in Ireland and avoiding the tariffs required of goods entering the EU's Single Market; the Northern Ireland Protocol includes a very restrictive definition of goods "not at risk", meaning that EU tariffs are potentially applicable on an indeterminate number of imports into Northern Ireland from Great Britain;
  • the arbitration panel: if the UK and the EU have disagreements about the Withdrawal Agreement and a resolution cannot be reached through consultations in the UK/EU Joint Committee, they can request the establishment of an arbitration panel drawn from a pool of members named by the UK and the EU; the pool of UK members to be appointed to the panel was communicated to the Scrutiny Committee just one day before the list was adopted by the Joint Committee; there had been no communication on this subject at all prior to the list being made available; and
  • "level playing field" issues: the UK and the EU interpret the applicability of EU state aid rules under the Northern Ireland Protocol in very different ways; this is concerning as it may impact on the willingness of companies to accept subsidies, or of state authorities to grant them; the EU's interpretation of the rules could in theory result in the EU intervening with respect to UK subsidies that only have a minimal, or even "merely potential" impact on trade between Northern Ireland and the EU; by contrast, the UK interpretation is that EU intervention would only be permissible if the EU Commission could prove a "real and material impact" on EU-Northern Ireland trade in goods.

The Scrutiny Committee has referred various questions to the Government to address the above concerns. To read the Committee's summary of the report in full and for a link to the full report, click here.

MUSIC

High Court grants order for Extended Disclosure for preliminary issues trial in global copyright infringement case relating to airline's inflight entertainment system.

The Performing Right Society Limited issued proceedings against Qatar Airways Group QCSC for global copyright infringement concerning the use of PRS repertoire works in Qatar Airways' inflight entertainment system, including two associated apps.

PRS claims that the inclusion of its repertoire works in Qatar Airways' inflight entertainment system involves Qatar Airways in two acts which require the licence of PRS as the copyright owner, namely (i) public performance and (ii) communication to the public. Under UK law, PRS therefore relies on both ss. 19 and 20 of the Copyright, Designs and Patents Act 1988. It seeks injunctive relief to restrain such infringement and damages.

Given the global nature of the dispute, consideration had been given by the parties as to how to deal with the foreign law aspects of the claim in a proportionate manner. With that in mind, and in advance of the case and costs management hearing, the parties had agreed that there should be a preliminary issues trial at which liability issues under UK and Qatari copyright law would be determined. The key issue at the case and costs management hearing was the scope of disclosure for the preliminary issues trial. PRS contended that Extended Disclosure under Practice Direction 51U (to which the proceedings are subject) should be given by Qatar Airways in relation to certain issues. Qatar Airways contended that there should be no disclosure.

Deputy Master Francis noted, inter alia, the following PD 51U paragraphs:

6.3: the court will only make an order for Extended Disclosure that is search-based (i.e. Models C, D and/or E) where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure (as defined);

6.4: in all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective (including the factors specifically listed therein);

6.5: it is for the party requesting Extended Disclosure to show that what is sought is appropriate, reasonable and proportionate (as defined);

7.3: "Issues for Disclosure" means only those key issues in dispute which needed to be determined by reference to contemporaneous documents in order for there to be a fair resolution of proceedings and does not extend to every issue disputed in the statements of case by denial or non-admission.

Deputy Master Francis also referred to McParland & Partners Ltd v Whitehead [2020] EWHC 298 (Ch), in which Sir Geoffrey Vos said that Paragraph 7.3 explains ". that in many cases, the issues for disclosure need not be numerous. They will almost never be legal issues, and they will not include factual issues that are already capable of being fairly resolved from the documents available on initial disclosure".

Sir Geoffrey also said "The important point for parties to understand is that the identification of issues for disclosure is a quite different exercise from the creation of a list of issues for determination at trial. The issues for disclosure are those which require extended disclosure of documents (i.e. further disclosure beyond what has been provided on initial disclosure) to enable them to be fairly and proportionately tried. .".

PRS contended that Extended Disclosure was required to enable the matters to be tried as preliminary issues to be fairly determined. PRS stressed, in particular, that consideration of whether there is an infringement of the communication to the public right requires a fact-sensitive, individualised assessment of Qatar Airways' inflight entertainment systems as a whole, for which purpose the court needed to have sufficient information about the nature and operation of those services. That information was solely within Qatar Airways' knowledge.

Qatar Airways submitted that none of the items listed within the list of Issues for Disclosure was genuinely a key matter in dispute which needed to be determined by reference to contemporaneous documents in order for there to be a fair resolution of proceedings. It said that all the issues to be determined at the preliminary issues trial were questions as to the application of the law to the admitted facts and could fairly be tried based on those admitted facts.

Further, although here were some factual disputes between the parties relating to passengers' mode and means of access to the apps and the range of content made available by them, Qatar Airways said that PRS was not asserting any positive case by way of reply to Qatar Airways' defence, and the mere joinder of issues on such matters was not itself sufficient to trigger Extended Disclosure.

Qatar Airways also said that PRS's request for Extended Disclosure was disproportionate and would involve a very extensive document search and management exercise at an estimated cost of nearly £250,000.

Deputy Master Francis did not accept that the absence of a reply to defence was any real indicator of the extent of the factual disputes in issue. Further, the parties had agreed directions in relation to witness statements at an estimated cost of around £150,000, which was an indication that both sides anticipated significant disputes of fact to be determined at the preliminary issues trial, encompassing items in the list of Issues for Disclosure.

As for proportionality, Deputy Master Francis was initially concerned at the extent of the exercise that Qatar Airways would have to undertake, but noted that this was a dispute between two very large commercial entities and that the issues in dispute were complex and of very great importance to both parties. Therefore, he was satisfied that if it was otherwise appropriate to make the order for Extended Disclosure, he should not be deterred by the extent of that exercise or the costs of it.

Considering the Issues in turn, Deputy Master Francis concluded that it was appropriate to make an order for Extended Disclosure under Model C for the preliminary issues trial, albeit it with some limitations. The judge noted, in particular, the summary of the case law on the communication to the public right given by Arnold LJ in the TuneIn case [2019] EWHC 2923 (Ch), and the individualised assessment which the court is required to undertake. (Performing Right Society Ltd v Qatar Airways Group QCSC [2021] EWHC 869 (Ch) (13 April 2021) - to read the judgment in full, click here).

Wiggin acts for PRS in this case.

IFPI comments on Court of Appeal decision in TuneIn Inc v Warner Music UK Ltd.

IFPI said that the decision by the Court of Appeal "confirms that TuneIn can only operate with appropriate licences from right holders and therefore cannot continue to blatantly disregard its obligation to ensure that its service is lawful.

"This is a big win for those investing in and creating music, reaffirming that services, like TuneIn, which generate revenues by providing online access to recorded music must be licensed to do so. Operating lawfully with an appropriate licence is essential if music creators are to be fairly compensated". To read IFPI's statement on its website, click here. For further detail about the case, please click here.

BETTING & GAMING

Gambling Commission launches three-year Corporate Strategy and annual Business Plan.

The Gambling Commission has unveiled its new three-year Corporate Strategy, which sets out the Commission's focus as it continues to protect the public and players from harm. Launched alongside the Commission's 2021 to 2022 Business Plan, the new Strategy will be delivered through five priority areas:

  • protecting children and vulnerable people from being harmed by gambling: ensuring licence holders minimise the risk of gambling harm to vulnerable groups as part of a coordinated effort to understand factors that influence behaviour; this will be achieved through improving conduct and competence, continuing to evolve the Licence Conditions and Codes of Practice, building a stronger evidence base, and focusing on preventative and regulatory action;
  • a fairer market and more informed consumers: ensuring that products are fair and compliant, whilst also improving information for players and making it simpler for them to find information on operators they are gambling with; this includes making licence holders' complaints procedures easier to access and understand;
  • keeping crime out of gambling: tackling those who offer illegal and unlicensed gambling to consumers in Great Britain, whilst also continuing, alongside partner agencies, to prevent activities which lead to money laundering; the Commission's work to manage risks around sports betting integrity and event manipulation will also continue to be an important feature in future enforcement work;
  • optimising returns to good causes from the National Lottery: ensuring the effective management of the third licence, whilst also concluding the fair and open competition for the fourth licence, ensuring a smooth and effective transition;
  • improving gambling regulation: over the past year the organisation has been restructured to ensure effective regulation in the future; the Commission continues to support the Government in its Gambling Act Review whilst also building on work it is already undertaking following recommendations from three key reports in 2020 into gambling regulation; the Commission will work with DCMS to ensure it has the resources to regulate effectively, to ensure employees are continually developed and technology is harnessed to improve systems and processes.

Meanwhile, the Commission's 2021-22 Business Plan sets out the priorities to accelerate progress in making gambling and safer for the public and players, including those at risk of harm and leisure gamblers. This includes a focus on improving the way the Commission regulates in parallel with other high-profile decisions to be announced later this year, such as the Government's Gambling Review and a review of the Commission's fees by DCMS. To read the Commission's press release in full, click here.

COMPUTER GAMES

Ukie reports on All-Party Parliamentary Group for Video Games and Esports first meeting of 2021.

Ukie reports that the APPG for Video Games and Esports held its first meeting of 2021 on 14 April. The meeting consisted of both an Annual General Meeting to elect members old and new into the group, as well as a roundtable discussion on Ukie's consumer valuation figures.

The APPG agreed for Alex Sobel MP to continue his role as Chair of the group, and Ukie will continue as Secretariat. The group also discussed which issues and topics they would like to cover over the coming year, which included the work the industry is undertaking to improve Electronic Data Interchange in the workforce.

Next, the meeting was opened to industry and wider parliament. Ukie provided an overview of the recently released UK consumer market valuation, which reached a record figure of £7 billion. It was also emphasised how UK-made games specifically had a relatively large market share, meaning that UK consumers were contributing to the growth of UK games companies.

Electronic Arts then spoke about the industry's wider effort of ensuring player wellbeing in light of the numbers showing increased spending on games, including the industry's Get, Set, Go campaign.

With reference to the market share held by UK-made games, the meeting then invited UK companies IntoGames, Creative Assembly, and Hypixel to discuss their experiences with jobs creation and growth over the past year.

Overall, Ukie says that the meeting provided insight into the economic, regional and cultural contributions of the UK games industry behind the consumer market valuation. To read Ukie's press release in full, click here.

DATA PROTECTION

European Data Protection Board publishes Opinions on the Commission's draft UK adequacy decisions.

At its 48th Plenary Session on 14 April 2021, the EDPB adopted two Opinions on the draft UK adequacy decisions: (i) Opinion 14/2021 based on the GDPR, assessing general data protection aspects and government access to personal data transferred from the EEA for the purposes of law enforcement and national security, including the legal remedies available to individuals in the EEA; and (ii) Opinion 15/2021 based on the Law Enforcement Directive (LED).

In Opinion 14/2021, the EDPB says that its key objective is to give an opinion to the European Commission on the adequacy of the level of protection afforded to individuals in the UK. It said it is important to recognise that the EDPB does not expect the UK legal framework to replicate European data protection law. However, to be considered as providing an adequate level of protection, Article 45 GDPR and the case-law of the CJEU require the third country's legislation to be aligned with the essence of the fundamental principles enshrined in the GDPR. The UK data protection framework is largely based on the EU data protection framework. Moreover, the UK Data Protection Act 2018, which came into force on 23 May 2018 and repealed the UK Data Protection Act 1998, further specifies the application of the GDPR in UK law, in addition to transposing the LED and granting powers and imposing duties on the Information Commissioner's Office. Therefore the EDPB recognises that the UK has mirrored, for the most part, the GDPR in its data protection framework. It notes the strong alignment on certain core provisions, such as: concepts (e.g., "personal data"; "processing of personal data"; "data controller"); grounds for lawful and fair processing for legitimate purposes; purpose limitation; data quality and proportionality; data retention, security and confidentiality; transparency; special categories of data; direct marketing; automated decision making and profiling.

Nonetheless, challenges remain and the EDPB considers that certain items should be further assessed to ensure that the essentially equivalent level of protection is met. These include:

  • monitoring the evolution of the UK legal system on data protection as a whole: the UK Government has indicated its intention to develop separate and independent policies in data protection with a possible will to diverge from EU data protection law; this possible future divergence might create risks for the maintenance of the level of protection provided to personal data transferred from the EU and the EDPB invites the European Commission to closely monitor any changes and take necessary action, including amending and/or suspending the decision if necessary;
  • general data protection aspects:
    1. the so-called "immigration exemption", in Schedule 2 to the Data Protection Act 2018, Part 1, paragraph 4 is "broadly formulated" the EDPB says, and it calls on the Commission to provide further information on it, in particular in relation to the necessity and proportionality of such a broad exemption in UK law;
    2. in relation to onward transfers that might undermine the level of protection of personal data transferred from the EEA, the EDPB calls on the Commission to monitor the situation and if the essentially equivalent level of protection of personal data transferred from the EEA is not maintained by the UK, it should consider amending the adequacy decision to introduce specific safeguards for data transferred from the EEA and/or to suspend the adequacy decision;
    3. on the absence of protections under Article 48 GDPR, which covers "Transfers or disclosures not authorised by Union law", the EDPB invites the Commission to provide further assurances and specific references to the UK legislation that ensure that the level of protection under the UK legal framework is essentially equivalent to the level of protection guaranteed in the EEA; and
    4. on procedural and enforcement mechanisms, the EDPB notes that a data protection framework consistent with the EU one must be characterised by the existence and effective functioning of an independent supervisory authority, the existence of a system ensuring a good level of compliance, and a system of access to appropriate redress mechanisms equipping individuals in the EEA with the means to exercise their rights and seek redress; the EDPB invites the Commission to monitor any developments in the UK legal framework and practice that might lead to detrimental impacts in these areas;
  • access by public authorities to data transferred to the UK: the EDPB notes the significant changes in the UK legal framework applicable to security and intelligence agencies, especially regarding the interception and acquisition of communication data; the EDPB welcomes the fact that the UK has established the Investigatory Powers Tribunal and introduced "Judicial Commissioners" in the Investigatory Powers Act 2016; however, the EDPB invites the Commission to further assess and demonstrate that, even in cases where the double-lock procedure does not apply, the UK legal framework provides for appropriate safeguards; the EDPB also considers that further clarification is needed on bulk interceptions in order to clarify the extent to which access to personal data meets the threshold set by the CJEU, and which safeguards are in place to protect the fundamental rights of individuals whose data are intercepted, including data retention periods.

The EDPB concludes that the UK adequacy assessment is unique because of the previous status of the UK as an EU Member State. Accordingly, the EDPB recognises many areas of convergence between the UK and the EU data protection frameworks. However, the EDPB has identified a number of challenges and it says that the European Commission must monitor relevant developments in the UK. To access the Opinions in full, click here.

European Data Protection Board adopts two sets of Guidelines and a Statement on international transfers.

At its 48th Plenary Session on 14 April 2021, as well as adopting two Opinions on the European Commission's draft adequacy decisions in respect of transfers of personal data from the EU to the UK (see item above), the EDPB also adopted a final version of the Guidelines on the targeting of social media users following public consultation. The aim of the Guidelines is to clarify the roles and responsibilities of social media providers and targeted individuals. The final version integrates updated wording in order to address comments and feedback received during the public consultation.

At the same meeting, the EDPB adopted Guidelines on the application of Article 65(1)(a) GDPR (which covers the concept of relevant and reasoned objection by a supervisory authority to the lead supervisory authority) to delineate the main stages of the procedure and clarify the competence of the EDPB when adopting a legally binding decision on the basis of Article 65(1)(a) GDPR. The Guidelines also include a description of the applicable procedural safeguards and remedies. The Guidelines will be subject to public consultation for a period of six weeks.

Finally, the EDPB adopted a Statement on international agreements, including transfers. The EDPB invites EU Member States to assess and, where necessary, review their international agreements that involve international transfers of personal data and which were concluded before 24 May 2016 (for those relevant to the GDPR) and 6 May 2016 (for those relevant to the LED) to align them, where necessary, with EU data protection law. To read the EDPB's press release in full, click here. To access the Guidelines on Article 65(1)(a), click here. To access the Statement, click here. The Guidelines on targeting social media users are not yet available on the EDPB website.

ADVERTISING, MARKETING & SPONSORSHIP

European Regulators Group for Audiovisual Media Services calls for uniform definitions and European rules for transparency in relation to political advertising.

ERGA says that to protect democratic societies in the digital age, rules to enable free and independent elections which take the online sphere into account are needed. ERGA welcomes the European Commission's announcement in its European Democracy Action Plan for legislation on the transparency of sponsored political content. In its response to the ongoing public consultation on this initiative, ERGA highlights two key points:

  • uniform definitions: media consumption is mostly now via a few large, international platforms, which are aware of the issue of political advertising; platforms each have their own definition of what constitutes a political advertisement, set out in their terms and conditions; for legal certainty and effective enforcement of transparency obligations, ERGA calls for a uniform definition of a political advertisement; this is not industry's responsibility, it says, but the legislature's responsibility;
  • European rules on transparency: ERGA proposes uniform rules on transparency of political advertising throughout Europe so that more information is available for each individual ad; ERGA also stresses the need to increase public scrutiny.

ERGA also says that a legislative initiative should be in the form of a Directive in order to give Member States enough leeway to adapt the new rules to their existing national laws. Regulation in political advertising varies greatly across Europe and this should be taken into account by giving Member States room for manoeuvre in implementation, it says. To read ERGA's press release in full, click here.

INTERNET

Facebook agrees to take more action to tackle the trading of fake and misleading reviews.

In January 2020 Facebook committed to better identify, investigate and remove groups and other pages where fake and misleading reviews were being traded, and prevent them from reappearing. It gave a similar pledge in relation to its Instagram.com business in May 2020, after the Competition and Markets Authority had identified similar concerns.

A follow-up investigation by the CMA found evidence that the illegal trade in fake reviews was still taking place on both Facebook and Instagram, and the CMA intervened for a second time.

Facebook has now removed a further 16,000 groups that were dealing in fake and misleading reviews. It has also made further changes to its systems for identifying, removing and preventing such content on its social media platforms to ensure it is fulfilling its previous commitments. These include:

  • suspending or banning users who are repeatedly creating Facebook groups and Instagram profiles that promote, encourage or facilitate fake and misleading reviews;
  • introducing new automated processes that will improve the detection and removal of this content;
  • making it harder for people to use Facebook's search tools to find fake and misleading review groups and profiles on Facebook and Instagram; and
  • putting in place dedicated processes to make sure that these changes continue to work effectively and stop the problems from reappearing.

This move follows the Government's announcement that a dedicated Digital Markets Unit (DMU) will be set up within the CMA from April 2021. Once the necessary legislation is in place, this will introduce and enforce a new code for governing the behaviour of platforms that currently dominate the market. As part of this process, the CMA has been advising government on the design and implementation of a pro-competition regime for digital markets. To read the CMA's press release in full, click here.

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