Need To Know - 12th April 2021 - Data Protection

Introduction

With all the talk of Covid-19 "vaccine passports" or "certification schemes" recently, the Information Commissioner, Elizabeth Denham, has sought to reassure the public that data protection laws and her office, the ICO, will ensure that people's personal data will be protected. Ms Denham says that the ICO has already engaged with the Government on the issue and stressed that, in order to ensure trust and confidence in any certification scheme, the Government must make certain that, "from the start, thought is given to how data can be used fairly and how this can be explained clearly to people ...". In the courts, we report this week on Johnny Depp's failed attempt to obtain permission to appeal the High Court's finding of truth in his libel claim against publishers of The Sun, and on the Court of Appeal's dismissal of an appeal by online radio aggregation service, TuneIn, against the High Court decision that its streaming service amounted to acts of communication to the public and was therefore an infringement of the claimant music companies' copyright (Wiggin acted for the music companies). In internet news, the newly created Digital Markets Unit has commenced work and published its terms of reference, the European Commission is consulting on an initiative to produce guidance on strengthening the Code of Practice on Disinformation and the Department for Culture, Media and Sport Select Committee has launched an inquiry to examine the power of influencers.

Speed read

Music

Streaming: Court of Appeal dismisses appeal by online radio aggregation service against decision that it was liable for acts of communication to the public, thereby infringing copyright.

Statistics: IFPI publishes Global Music Report 2021.

Online piracy: PRS for Music announces that its Member Anti-Piracy System has reported over 6.7 million URLs to websites linking to or hosting music illegally.

Publishing

Judgment: Court of Appeal refuses application for permission to appeal finding of truth in defamation judgment in Johnny Depp case.

Film & TV

ODPS: Ofcom publishes for consultation draft guidance on "On-demand programme services - who needs to notify to Ofcom?"

Broadcasting

DAB: Ofcom awards second wave of small-scale DAB multiplex licences.

Betting & Gaming

Commission: Gambling Commission publishes data showing the impact of COVID-19 on gambling behaviour in January and February 2021.

Data Protection

COVID-19: Information Commissioner publishes blog post on role of ICO and data protection law in creating public trust and confidence around COVID-19 status certification schemes.

Data sharing: European Parliament adopts non-binding report in response to Commission's Communication on a European Data Strategy.

GDPR: European Parliament adopts resolution on Commission's evaluation report on implementation of GDPR two years after its application.

Internet

DMU: Government announces that Digital Markets Unit has commenced work and publishes terms of reference.

Fines: Phonepaid Services Authority fines provider who took advantage of vulnerable consumers trying to call government helplines.

Fines: Phonepaid Services Authority fines company £750,000 over misleading discount service that charged people without consent.

Consultation: Phonepaid Services Authority consults on new Code of Practice, Code 15.

Disinformation: European Commission consults on roadmap initiative to produce guidance on strengthening the Code of Practice on Disinformation.

Telecoms: Ofcom publishes statement on its review of wholesale call markets.

Social media: Department for Culture, Media and Sport Select Committee launches inquiry to examine the power of influencers.

Music

Court of Appeal dismisses appeal by online radio aggregation service against decision that it was liable for acts of communication to the public, thereby infringing copyright.

Facts

Warner Music UK Ltd and Sony Music Entertainment UK Ltd, and the groups they represent, own or license the exclusive rights to copyright in sound recordings of music.

TuneIn Inc. operates a global online radio service, which provides access to tens of thousands of music radio stations from around the world through its website and apps. TuneIn essentially acts as a "one- stop shop" for users wishing to browse, search for and listen to radio stations. It aggregates links to radio station streams, categorises and curates station lists, and recommends stations to users based on their location and other factors.

The record companies contended that TuneIn itself requires a licence where its service includes radio stations that play sound recordings within their repertoires in circumstances where those stations are not licensed for reception in the UK. TuneIn disputed this on the basis that it does not transmit or host any music content and merely provides hyperlinks to radio streams that are freely available on the internet without any geographic or other restriction.

At first instance, Mr Justice Birss found that TuneIn was liable for linking to foreign stations that are unlicensed for reception in the UK. He also found that TuneIn had authorised both infringing acts of reproduction by UK users who made copies of the claimants' recordings using TuneIn's "Pro app", as well as acts of communication of the public by the operators of stations not licensed for the UK, and to be jointly liable with these parties. TuneIn appealed that decision on no less than 44 grounds and invited the Court of Appeal to depart from EU case law on the issue of communication to the public.

Decision

The Court of Appeal declined to accept TuneIn's invitation to exercise its powers under the European Union (Withdrawal) Act 2018 to depart from EU case law on hyperlinking, including CJEU Case C- 466/12 Svensson v Retriever Sverige AB and Case C-160/15 GS Media BV v Sonoma Media Netherlands BV.

Lord Justice Arnold, giving the leading judgment, set out eight reasons why the Court should not depart from the established principles laid down by the CJEU. Amongst other things, the Judge dismissed TuneIn's argument that the provision of a hyperlink could not be an act of communication because it was not a "transmission or retransmission". This was because communication to the public includes the "making available" right, and so encompasses potential transmissions (not just actual transmissions). Arnold LJ concluded that it was difficult to see why a hyperlink should not be covered, particularly in the cases of framing and in-line linking to a continuous stream of content.

Arnold LJ also observed that departure from the GS Media decision alone would not assist TuneIn as the claimants would argue both that the principles articulated in later CJEU decisions, such as Filmspeler, Pirate Bay and Renckhoff, would be sufficient to determine the issues in their favour, and that the principles in the earlier case law were sufficient.

The Master of the Rolls stated in his judgment that "[t]he wholesale departure that [TuneIn] suggested would, in large part, not anyway have helped it. ... I do not exaggerate when I say that I regard this as a paradigm case in which it would be inappropriate for the Court of Appeal to exercise its new-found power to depart from retained EU law ... the CJEU's approach to the law of infringement of copyright by communication to the public is neither impeding nor restricting the proper development of the law, nor is it leading to results which are unjust or contrary to public policy".

On the issue of targeting, the Court found that TuneIn's service targets foreign stations at UK users. It rejected TuneIn's arguments that, whilst its platform was targeted at the UK, the individual communication to the public of foreign stations was not.

In relation to the "category 3" stations, which were licensed in their home territory pursuant to a statutory scheme, the Court upheld Birss J's finding that TuneIn Radio is a "different kind of communication (in the sense that it has the features of aggregation, categorisation, etc. ...) targeted at a different public in a different territory." Even if the relevant statutory schemes were to amount to a form of "deemed consent" (in relation to which Arnold LJ expressed doubt) there was no reason to conclude that that authorisation extended to the UK public targeted by TuneIn. The Court confirmed that Birss J had not failed to strike a fair balance in coming to this conclusion, stating that "striking a fair balance does not involve giving freedom of expression precedence over copyright, which is the effect of TuneIn's argument."

In relation to stations licensed for their home territory pursuant to consensual licences (which were not addressed specifically at first instance), the Court held that Birss J's reasoning should apply equally. Absent evidence to the contrary (such as a licence whose terms have extra-territorial effect), the Court held that the rightsholder would only have taken into consideration the local audience for the station when authorising the initial communication to the public by the foreign stations, and not UK users targeted by TuneIn's links to the streams. Accordingly, TuneIn's communication was to a new public.

Like Birss J, the Court agreed that TuneIn could not be in a better position in respect of unlicensed stations, including stations operating in territories with statutory remuneration schemes that were not yet running or where no remuneration was being paid ("category 2" stations). These stations engaged the Court's consideration of the knowledge presumption under GS Media.

Arnold LJ considered that the presumption was clear: it was "that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder". He considered that Birss J had been entitled to conclude that the checks undertaken by TuneIn were generally inadequate to rebut the GS Media presumption in relation to unlicensed stations operating in exclusive rights regimes: "We were shown no evidence that TuneIn believed on reasonable grounds that [Capital FM Bangladesh and Urban 96.5 Nigeria] were licensed (or even operated lawfully), in the territory of origin. The furthest the evidence went was that TuneIn did not know that the stations were operating unlawfully; but that is not enough to rebut the GS Media presumption." Arnold LJ considered that Birss J had been entitled to conclude that TuneIn had not rebutted the presumption in respect of the remaining category 2 stations for the same reasons.

The recent CJEU decision in Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz EU:C:2021:181 did not change the Court's assessment. Whilst TuneIn placed particular emphasis on paragraph 46, which suggests that the only way in which a rightsholder can limit its consent is by means of effective technological measures, Arnold LJ was clear that this passage must be understood in context. He noted the CJEU's finding that copyright owners cannot be faced with the choice of either tolerating unauthorised use of their works or surrendering use of them, including by licences, and said that paragraph 46 cannot remove the need for an individualised assessment in each case.

The minor point reversed on appeal relates to the finding that TuneIn's provision of links to UK-licensed stations on the "Pro app" to UK users, with the record function enabled, infringed the communication to the public right. The Court held that this communication involves the same "technical means" as the original communication, namely the internet; the presence of a record function did not change that analysis. Whilst Arnold J was attracted by the music companies' arguments that the communication was to a "new public" because the rightsholders would not have taken into account the possibility of users recording their repertoire, the argument did not ultimately hold sway. As observed in the judgment, however, the rightsholders did not grant a licence which extended to reproduction of sound recordings by users. Accordingly, that reproduction, including in respect of UK licensed stations, was an infringement of copyright for which TuneIn was jointly liable (see below). This finding therefore does not impact the scope of the injunctive relief ordered by Birss J.

The Court also upheld Birss J's findings on authorisation and joint tortfeasorship. In respect of the foreign stations, Arnold LJ noted that "[a]lthough [the fact that the stations are primarily liable] might at first blush seem a surprising conclusion where the foreign station was indexed by TuneIn without the knowledge or consent of its operator, the judge was correct to hold that it follows from the fact that the streams become targeted at the UK as a result of TuneIn's intervention. The foreign radio stations can avoid liability by requiring that they be removed from TuneIn Radio or that they be geo-blocked to UK users." (TuneIn Inc v Warner Music UK Ltd [2021] EWCA Civ 441 (26 March 2021) — to read the judgment in full, click here).

IFPI publishes Global Music Report 2021.

IFPI's Global Music Report 2021 shows that the global recorded music market grew by 7.4% in 2020, the sixth consecutive year of growth. The figures show total revenues for 2020 were US$21.6 billion.

According to the Report, growth was driven by streaming, especially by paid subscription streaming revenues, which increased by 18.5%. There were 443 million users of paid subscription accounts at the end of 2020. Total streaming (including both paid subscription and advertising-supported) grew 19.9% and reached $13.4 billion, or 62.1% of total global recorded music revenues. The growth in streaming revenues more than offset the decline in other formats' revenues, including physical revenues which declined 4.7% and revenues from performance rights, which declined 10.1%, largely as a result of the COVID-19 pandemic.

Recorded music revenues grew in every region around the world in 2020, including:

Latin America maintained its position as the fastest-growing region globally (15.9%) as streaming revenues grew by 30.2% and accounted for 84.1% of the region's total revenues;
Asia grew 9.5% and digital revenues surpassed a 50% share of the region's total revenues, for the first Excluding Japan (which saw a decline of 2.1% in revenue), Asia would have been the fastest-growing region, with exceptional growth of 29.9%;
featured as a region in the report for the first time, recorded music revenues in the Africa & Middle East region increased by 4%, driven primarily by the Middle East & North Africa region (37.8%). Streaming dominated, with revenues up 36.4%;
revenues in Europe, the second-largest recorded music region in the world, grew by 3.5% as strong streaming growth of 20.7% offset declines in all other consumption formats; and
the US & Canada region grew 7.4% in 2020: the US market grew by 7.3% and Canadian recorded music revenues grew by 1%.

IFPI says that the work and investment of record companies has helped lay the foundations for a predominantly digital industry that proved its resilience against the extraordinary circumstances of 2020. In a challenging year, record companies have worked alongside their artist partners to support them in creating and recording music and the whole sector has continued to drive innovations in the ways fans can experience music around the world. To read IFPI's press release in full and for links to the Report, click here.

PRS for Music announces that its Member Anti-Piracy System has reported over 6.7 million URLs to websites linking to or hosting music illegally.

PRS for Music has announced encouraging figures demonstrating the continued success of its Member Anti-Piracy System (MAPS) in the battle against digital music piracy, five years on from its launch.

PRS for Music says that since 2016, the bespoke automated notice and takedown tool, which tracks PRS for Music repertoire on unlicensed and infringing websites on behalf of the organisation's 150,000 songwriter, composer and publisher members, has:

reported over 6.7 million URLs to sites linking to or hosting PRS for Music works illegally;
removed 76% of infringing URLs, with any non-compliant sites being directly referred to the Police Intellectual Property Crime Unit's Operation Creative;
notified Google and Bing of over 424,000 live links for delisting results from search pages; and
been instrumental in forcing 1,346 infringing sites to cease operating

Some of the most infringed compilations crawled by the MAPS database include The Official Top 40 Singles Chart, Beatport Top 100 and Billboard Hot 100.

Simon Bourn, Associate General Counsel, PRS for Music, said that "... If just one legal download of an album were made for every infringement identified by MAPS over the past five years, it would have led to revenue being generated for the industry of around £13.1 million. However, we know that in fact many downloads are likely to be made via an infringing link, so the loss to the industry is in fact a multiplier of this amount ..." .

Overseen by PRS for Music's Rights Protection Unit, MAPS utilises web-crawling technology to detect and report infringements. Cutting off instances of piracy at the source, MAPS helps to ensure that legitimate, licensed services can be more easily found and that PRS for Music members receive fair remuneration for use of their repertoire online. To read PRS for Music's press release in full, click here.

Publishing

Court of Appeal refuses application for permission to appeal finding of truth in defamation judgment in Johnny Depp case.

In November 2020, Mr Justice Nicol handed down a judgment dismissing a claim for libel brought by the actor Johnny Depp against News Group Newspapers Ltd and one of its journalists. The claim arose out of an article in The Sun which accused Mr Depp of being a wife-beater. NGN's defence was that the allegation was true because Mr Depp had on numerous occasions physically assaulted his then wife, Amber Heard: fourteen separate incidents were pleaded, covering a three-year period between early 2013 and May 2016. Nicol J found that Mr Depp had assaulted Ms Heard on all but two of those occasions. Ms Heard was the principal witness for NGN, and the judge largely accepted her evidence. Accordingly, NGN's defence under s 2(1) of the Defamation Act 2013 succeeded.

Mr Depp applied to the Court of Appeal for permission to appeal against Nicol J's decision and for permission to rely in support of the appeal on evidence that had not been before the judge, but which he said cast serious doubt on Ms Heard's credibility.

Lord Justice Underhill, giving the judgment, noted that Nicol J had examined a number of points relied on by Mr Depp, apart from the fourteen incidents, as reflecting badly on Ms Heard's credibility and had concluded that none of them carried substantial weight. Although in one sense Nicol J's conclusion involved him accepting that Ms Heard was a credible witness, Underhill LJ said that it was important to appreciate that he had not made an overall assessment of her credibility, which he had then fed into his conclusions on the individual incidents; he had found that Mr Depp's various submissions challenging her general credibility were not helpful. Rather, in relation to each of the fourteen incidents he had relied on the evidence relating specifically to that incident.

Mr Depp argued that there were fundamental flaws in Nicol J's approach to the fact-finding exercise and raised a number of grounds. He focused on three complaints, which he said all had a common element, namely that Ms Heard's evidence had been accepted by Nicol J "too glibly without proper forensic examination of the inherent probabilities and the contemporary documents". On an analysis of Nicol J's judgment, Underhill LJ found that this was not a fair criticism. Accordingly, all grounds of appeal were rejected on the facts.

As for the application for permission to adduce further evidence, Mr Depp said that Ms Heard had married him for financial gain and that he had further evidence that questioned Ms Heard's witness evidence that she had donated the entire amount of her divorce settlement to charity.

There was no dispute that, in accordance with the well-established "Ladd v Marshall principles", further evidence should only be admitted for the purpose of an appeal: (i) if it could not have been obtained with reasonable diligence for use at the trial; (ii) if it would probably have had an important influence on the result of the case; and (iii) if it is credible.

Underhill LJ noted that, whether Ms Heard had given a misleading impression about her charitable donations, was in itself nothing to do with the case that Nicol J had had to decide; Mr Depp had himself told the court that his belief that Ms Heard had married him for financial gain was not part of his case. Further, he had not cross-examined Ms Heard on the issue. It was therefore only relevant to the extent that it shed light on the question of whether Mr Depp had committed the alleged assaults. As such, it was irrelevant.

Mr Depp argued that the apparent fact that Ms Heard had donated the entirety of her divorce settlement to charity was at least very likely to have influenced Nicol J's assessment of her overall credibility. Underhill LJ rejected this, finding that, given that Nicol J had based his conclusions on each of the incidents of assault on an extremely detailed review of the evidence specific to each incident, there was little need for him to give weight to any general assessment of Ms Heard's credibility, which is notoriously a more difficult and uncertain basis for deciding on disputed facts. It was pure speculation, and very unlikely, that he gave any weight to general considerations about her character of the kind suggested by Mr Depp.

Further, Underhill LJ found that Nicol J would not have reached a different conclusion if it had been established that Ms Heard had given a misleading impression about how much of her divorce settlement had in fact been paid to her nominated charities. Again, that was essentially because his focus had been squarely on the evidence relating to the alleged assaults themselves.

Accordingly, the application was dismissed on the basis of limb (ii) of Ladd v Marshall. As for limb (i), Underhill LJ said that the real difficulty for Mr Depp was that he had not cross-examined Ms Heard about her donation to charity.

Underhill LJ concluded that it was not easy to persuade the Court of Appeal to overturn the findings of a trial judge on purely factual questions and there was no real prospect of it being prepared to do so in this case. The hearing before Nicol J was full and fair, and he had given thorough reasons for his conclusions, which had not been shown even arguably to be vitiated by any error of approach or mistake of law. (John Christopher Depp II v News Group Newspapers Ltd [2021] EWCA Civ 423 (25 March 2021) — to read the judgment in full, click here).

Film & TV

Ofcom publishes for consultation draft guidance on "On-demand programme services - who needs to notify to Ofcom?"

Ofcom is consulting on draft guidance to help providers to self-assess whether they meet the expanded definition of an on-demand service (ODPS) provider and so need to notify to Ofcom, following changes to the statutory rules.

The Communications Act 2003 was recently revised to take account of changes to the regulatory framework under the Audiovisual Media Services Directive (2018/1808/EU), which came into force on 1 November 2020. This included changes to the criteria that determine whether a service meets the definition of an On-Demand Programme Service. The revised criteria will mean that a wider range of services are now required to notify as an ODPS to Ofcom. The proposed guidance aims to help providers to make this assessment.

Ofcom is now seeking views from interested or affected parties on our draft guidance by 5pm on 26 May 2021. Ofcom expects to publish the final guidance, taking into account stakeholder feedback, in summer 2021. To access the draft guidance and consultation, click here.

Broadcasting

Ofcom awards second wave of small-scale DAB multiplex licences.

Small-scale DAB is an innovative technology that provides a low-cost way for local commercial, community and specialist music services to take to the digital airwaves. Ofcom has awarded small-scale DAB radio multiplex licences for four more areas in England and Scotland.

Following a competitive process, where each applicant was judged against specific criteria, multiplex licences have been awarded for the following areas:

Cambridge: licence awarded to Cambridge Digital Radio Limited;
Inverclyde: licence awarded to UK DAB Networks Limited;
Sheffield & Rotherham: licence awarded to Shefcast Digital Limited; and
Winchester: licence awarded to UKDAB Networks

Further licence awards for the remaining 16 areas that were advertised in Round One will be announced over the coming weeks. Round Two licence areas in the North West of England and North East Wales will be advertised on 1 June 2021. To read Ofcom's announcement in full, click here.

Betting & Gaming

Gambling Commission publishes data showing the impact of COVID-19 on gambling behaviour in January and February 2021.

The Gambling Commission has published further data showing how the further tightening of Covid-19 lockdown measures has impacted online gambling behaviour in Great Britain. The data reflects the period between March 2020 and February 2021 inclusive, and covers both online and (where relevant) some offline gambling operator data, noting that all land-based premises have been closed since December 2020. The update contains both January and February operator data.

The latest online operator data for the first two months of 2021 shows:

activity in the online market declined following a traditionally busy period in December, with a decrease of 4% in active accounts and 6% in bets, while gross gambling yield (GGY) decreased by 19% from December to February;
slots GGY decreased by 1% to nearly £177 million during the period from December to February; the number of bets also decreased (7% to below 5 billion), while the number of active accounts remained steady after peaking at 3 million in January; and
the number of online slots sessions lasting longer than an hour decreased by 1% (to 5 million) between December and February after peaking in January at 2.6 million (up 4% since December); the average session length remains steady at 21.5 minutes, with around 9% of all sessions lasting more than one hour.

The Commission says that, against the background of this data and its experience of the pandemic period so far, extra operator vigilance continues to be needed during the current national lockdown conditions because: 

most people will be spending more time at home and online and many people are likely to be feeling more isolated and vulnerable as a result of the length of the pandemic period, the new restrictions and further uncertainty about their personal or financial circumstances;
some consumers, such as highly engaged gamblers who play a range of products, are likely to spend more time and money gambling and the fact that sport will continue during this lockdown will mean there are more opportunities for betting customers to gamble; and
some people may gamble for the first

The Commission wrote to operators at the beginning of the recent lockdown to remind them of the guidance it initially issued in May 2020 to online operators  and their responsibilities during this challenging period for the country.

The Commission reminds operators that it expects them to: 

continue to follow the  strengthened guidance  issued during the first lockdown, taking close interest in data that shows consumers expanding their portfolio of games and spending more time or money than before;
interact directly where triggers are reached, in addition to their more generic email engagement; and
avoid any temptation to exploit the current situation for marketing purposes and be very cautious when seeking to cross-sell

To read the Commission's press release in full and for links to both the update and the operator data, click here.

Data Protection

Information Commissioner publishes blog post on role of ICO and data protection law in creating public trust and confidence around COVID-19 status certification schemes.

In her blog post the Information Commissioner, Elizabeth Denham, sets out how data protection laws and the ICO can help build public trust and confidence in any COVID-19 status certification schemes that the Government decides to bring into force. Ms Denham reveals that the ICO has already engaged with the Government about how data protection law and regulation need not be a barrier to the responsible use of personal data in any certification scheme. The ICO is also engaging with the devolved administrations.

Ms Denham says that in order to ensure trust and confidence in any certification scheme, it is crucial that "from the start, thought is given to how data can be used fairly and how this can be explained clearly to people using a scheme".

Ms Denham explains that any organisation processing personal data as part of a COVID-status certification scheme would be responsible for using that personal data appropriately and for complying with data protection law. In other words, the usual data protection laws would apply to any such scheme. This means high standards of governance and accountability to ensure compliance with data protection principles, including transparency, fairness, data minimisation and storage limitation, and utilising a "data protection by design" approach as part of their planning.

Further, Ms Denham explains that if the UK plans to develop digital infrastructure as part of any COVID- 19 status certification schemes, then they must be secure, fit for purpose and compliant with the law.

Ms Denham notes that people are sometimes concerned that information collected for one purpose might then be used for other purposes. She says that the UK data protection regime can "offer people reassurance here", as the law expects organisations to be clear why they are using data, and the ICO can act to enforce.

Ms Denham warns, however, that there must be a "strong line from leaders on what is and is not acceptable" to avoid the situation where a range of organisations offers COVID-19 status certification services with varying levels of good governance and protections for personal data. "The failing of one initiative may undermine public trust in all such schemes", Ms Denham notes. To read the blog post in full, click here.

European Parliament adopts non-binding report in response to Commission's Communication on a European Data Strategy.

In February 2020 the European Commission unveiled its European Data Strategy, aimed at creating a single market for data that will ensure Europe's global competitiveness and data sovereignty. According to the Commission, common European data spaces will ensure that more data becomes available for use in the economy and society, while keeping companies and individuals who generate the data in control. The Commission's proposed Data Governance Act, which sets out measures to boost data sharing and support European data spaces, and on which the EDPS and EDPB recently issued a joint Opinion calling for legislators to ensure that it is fully in line with EU personal data protection legislation, is part of the Commission's European Data Strategy, as is its White Paper on Artificial Intelligence also published in February 2020.

In a report adopted by the European Parliament in response to the European Data Strategy last week, MEPs call for legislation focused on people, based on European values of privacy and transparency, that will enable Europeans and EU-based companies to benefit from the potential of industrial and public data.

MEPs said that the Coronavirus crisis has shown the need for efficient data legislation that will support research and innovation. Large quantities of quality data, notably non-personal (industrial, public, and commercial) already exist in the EU and their full potential is yet to be explored. In the coming years, much more data will be generated. MEPs expect data legislation to help tap into this potential and make data available to European companies, including small and medium-sized enterprises, and researchers.

However, MEPs stressed that rules should be based on privacy, transparency and respect for fundamental rights. The free sharing of data must be limited to non-personal data or irreversibly anonymised data. Individuals must be in full control of their data and be protected by EU data protection rules, notably the General Data Protection Regulation (GDPR). MEPs called on the Commission and EU countries to work with other countries on global standards to promote EU values and principles and ensure the EU's market remains competitive.

Calling for the free flow of data to be the guiding principle, MEPs urged the Commission and EU countries to create sectoral data spaces that will enable the sharing of data while following common guidelines, legal requirements and protocols. For further information, click here.

European Parliament adopts resolution on Commission's evaluation report on implementation of GDPR two years after its application.

The resolution welcomes the fact that the GDPR has become a global standard for the protection of personal data and is a factor for convergence in the development of norms. It also welcomes the fact that the GDPR has placed the EU at the forefront of international discussions about data protection, and a number of third countries have aligned their data protection laws with the GDPR.

It concludes that two years after its entry into application, the GDPR has been an overall success, and agrees with the Commission that it is not necessary at this stage to update or review the legislation.

The resolution also acknowledges that until the Commission's next evaluation, the focus must continue to be on the improvement of implementation and on actions to strengthen the enforcement of the GDPR and that there is a need for strong and effective enforcement of the GDPR in large digital platforms, integrated companies and other digital services, especially in the areas of online advertising, micro- targeting, algorithmic profiling, and the ranking, dissemination and amplification of content.

However, it notes several areas of concern, including:

in their privacy policy, data controllers often rely on all six lawful bases under Article 6(1) of the processing of personal data without further explanation and without referring to the specific processing operation concerned, which hinders the ability of data subjects and supervisory authorities to assess whether the grounds are appropriate;
individuals are often put under financial pressure to give consent in return for discounts or other commercial offers, or are forced to give consent by conditioning access to a service through tying provisions, in breach of Article 7 of the GDPR;
"legitimate interest" is very often abusively mentioned as a legal ground for processing and controllers continue to rely on legitimate interest without conducting the required test of the balance of interests, which includes a fundamental rights assessment;
some companies continue to breach their obligations under Article 12(1) of the GDPR and fail to provide relevant information around data sharing, including listing the names of the entities with whom they share data, and do not provide information that is simple and accessible;
enforcement of the GDPR by national data protection authorities is uneven and sometimes non- existent and has not substantially improved compared to the situation under the Data Protection Directive (95/46/EC); and
supervisory authorities of 21 Member States out of 31 states applying the GDPR, i.e. all EU Member States, the EEA, and the UK, have explicitly stated that they do not have sufficient human, technical and financial resources, premises and infrastructure to effectively perform their tasks and exercise their powers.

To read the report in full, click here.

Internet

Government announces that Digital Markets Unit has commenced work and publishes terms of reference.

The Government says that the Digital Markets Unit (DMU), based in the Competition and Markets Authority (CMA), will oversee plans to promote online competition and crack down on unfair practices.

According to the Government, there is a consensus that the concentration of power among a small number of online platform companies is curtailing growth and having negative impacts on consumers and businesses which rely on those platforms.

In November 2020, the Government announced that a new unit would be set up to enforce a new pro- competition regime to cover platforms with considerable market power, i.e. strategic market status. The DMU has now commenced its first work programme as it launches in "shadow" non-statutory form ahead of legislation granting its full powers.

According to the terms of reference, the non-statutory DMU will:

carry out preparatory work to implement the statutory regime: building teams with the relevant capabilities and preparing draft guidance;
support and advise the Government on establishing the statutory regime: looking at how codes of conduct could work in practice to govern the relationship between digital platforms and groups such as small businesses that rely on them to advertise or use their services to reach their customers; the Digital Secretary has specifically asked the DMU to work with the communications regulator Ofcom to look at how a code would govern the relationship between platforms and news publishers to ensure they are as fair and reasonable as possible; the Government will consult on the design of the new pro-competition regime in the first half of 2021 and legislate to put the DMU on a statutory footing as soon as Parliamentary time allows;
evidence gathering on digital markets: the CMA will continue to use its existing powers, where appropriate, to investigate harm to competition in digital markets; this will ultimately inform the work of the statutory DMU; and
engaging stakeholders across industry, academia, other regulators and Government: building relationships with experts in the UK and internationally to compile the necessary evidence, knowledge and expertise so that once the new pro-competition regulatory regime is in place it can begin operation as quickly as possible; the DMU will also coordinate with international partners and work closely with other regulators, including the Information Commissioner's Office, Ofcom and the Financial Conduct Authority (FCA).

A forum will be established for the DMU to update the Government on its work. It will bring together officials from the CMA, the DCMS, the Department for Business, Energy and Industrial Strategy, and HM Treasury, to agree a work programme for the non-statutory DMU on its advice to the Government, and monitor progress against this. The ICO, Ofcom and the FCA will also join this forum to inform the work programme on relevant areas as required. To read the Government's press release in full and for a link to the terms of reference, click here.

Phonepaid Services Authority fines provider who took advantage of vulnerable consumers trying to call government helplines.

The PSA has sanctioned Peter Jones, a sole trader who traded as Webserve CMS.

Webserve ran a call-connection service which connected people to, for example, banks, shops and delivery services. It also offered connection to a number of government benefit organisations, including for Universal Credit. Calling these numbers is usually free of charge, but using the Webserve service cost consumers 7p per minute, plus network access charges. One consumer was charged over £100.

The Tribunal found that Jones had committed six breaches of the PSA's Code of Practice, including a breach of Rule 2.3.10 (Vulnerability) because the service was promoted and provided in a way that meant financially vulnerable consumers were taken advantage of.

The Tribunal fined Webserve £135,000, ordered it to refund all consumers who claim a refund and barred the service for a minimum of two years. To read the Tribunal's decision in full, click here.

Phonepaid Services Authority fines company £750,000 over misleading discount service that charged people without consent.

Globo Mobile Kommunikation UG charged people £4.50 a month for its "Voucher Promotions" service and used logos of well-known brands in its promotions, including Zara, Currys, PC World and Homebase. However, the codes sent to consumers were available freely online and were not sent every month as advertised.

The Tribunal found breaches of: Code 14 2.2.3 (Transparency and Pricing); Code 14 2.3.3 (Fairness); and Code 14 4.2.3 (Obligations of Providers of premium rate services). The Tribunal found that the service was misleading and had charged consumers without their consent.

The Tribunal banned the provider from the market for five years and fined it £750,000. To read the Tribunal's decision in full, click here.

Phonepaid Services Authority consults on new Code of Practice, Code 15.

The PSA says that this review of its Code of Practice is the most comprehensive in more than a decade. The proposed Code intends to introduce standards in place of outcomes, focus on the prevention of harm, be simpler and easier to comply with and be underpinned by effective and efficient enforcement.

The consultation document sets out the context to the draft Code of Practice and seeks feedback and comments from consumers, industry and other stakeholders.

The PSA will be formally consulting on its proposals until 5 July 2021. It will be hosting a Code 15 forum on 28 April 21, to give stakeholders an opportunity to hear more and share some initial thoughts. Further stakeholder events are also planned during the consultation period. For further information and to access the consultation, click here.

European Commission consults on roadmap initiative to produce guidance on strengthening the Code of Practice on Disinformation.

The Code of Practice on Disinformation is a voluntary code of practice to which various online platforms, such as Facebook, Google and Twitter, and other relevant stakeholders signed up to in September 2018. The aim is to limit the spread and impact of disinformation.

In June 2020, the Commission carried out an evaluation of the existing Code and of action taken by signatories to the Code to fight coronavirus-related disinformation. The assessment identified several shortcomings limiting the impact of the Code, including: (i) inconsistent and incomplete application of the Code's commitments across platforms and Member States: (ii) a lack of uniform definitions; (iii) gaps in the scope of the Code; and (iv) lack of key performance indicators and of an independent oversight mechanism. Overall, to step up the fight against disinformation, the Code needs strengthening and monitoring.

The Commission intends to produce Guidance, in the form of a Communication, on strengthening the Code of Practice and has published a roadmap setting out what the Guidance will cover and how to achieve it.

The Guidance will set out how the signatories (platforms and other relevant stakeholders) should strengthen it and how implementation and impact of the Code should be monitored. The Guidance and the strengthened Code of Practice will be complementary to the Digital Services Act (DSA) and the Digital Markets Act (DMA) (proposed by the Commission in December 2020 and now being discussed in the European Parliament and the Council), as well as the planned initiative on transparency of political advertising.

The aspects of the Code the Guidance will aim to improve include:

reducing the monetisation of disinformation linked to sponsored content by limiting: (i) false or misleading issue-based advertisements on online platforms or third-party websites; and (ii) the placement of ads on websites that are purveyors of disinformation;
stepping up fact-checking by establishing transparent standards and procedures for open and non-discriminatory collaboration between fact-checkers and platforms and fostering cooperation;
strengthening the integrity of services offered by online platforms by developing appropriate measures to limit the artificial amplification of disinformation campaigns (limiting fake accounts and the use of bots);
exploring transparency in relation to the visibility of authoritative information of public interest;
exploring measures such as trustworthiness indicators to provide users with tools and information to assess the source, including the integration of such indicators into the signatories' services and their content moderation systems;
ensuring effective data disclosure for research on disinformation, including easy access to the relevant data, by developing a framework in line with applicable regulatory requirements, and based on the involvement of all relevant stakeholders (independently from political influence); and
monitoring the impact of disinformation and the effectiveness of the platforms' policies, including by key performance indicators. In this context, timely information on the platforms' policies and access to relevant data and their assessment of relevant developments is

The roadmap is open for feedback until midnight Brussels time on 29 April 2021. To access the roadmap, click here.

Ofcom publishes statement on its review of wholesale call markets.

Ofcom has published a statement on how it will regulate the wholesale markets that underpin landline and mobile telephone calls in the UK for the period between April 2021 and March 2026.

To continue to protect customers from high prices, Ofcom is capping termination rates for calls made and received in the UK, based on the cost of connecting a call. This includes:

for calls to mobiles, the cap will be 379p per minute next year, which is lower than the current cap of 0.468p per minute; Ofcom will also continue applying this mobile termination cap to calls to 070 numbers;
for calls to landlines, Ofcom will maintain the current cap of 0.0292p per minute in real terms; and
when someone calls a UK number from abroad, Ofcom proposes that UK providers should charge no more than the rate they are charged when their customers make calls to that international

Currently, some phone companies still use BT's wholesale "call origination" service to enable their customers to make calls on their landline. Over the next few years, landline calls will be increasingly carried over more modern, Internet Protocol (IP) networks. Ofcom will therefore deregulate wholesale call origination, as providers will no longer need to purchase it from BT.

As industry moves away from using the traditional telephone network, Ofcom expects companies will increasingly interconnect with each other using the more modern IP interconnection networks. Accordingly, Ofcom has set out how it will regulate BT's IP interconnection service. To access the statement, click here.

Department for Culture, Media and Sport Select Committee launches inquiry to examine the power of influencers.

The Committee says that its inquiry will examine the power of influencers on social media and how influencer culture operates. It will also consider the absence of regulation on the promotion of products or services, aside from the existing policies of individual platforms. An investigation by the Advertising Standards Authority found that more than three-quarters of influencers "buried their disclosures within their posts".

The inquiry will also assess influencer impact when it comes to media and popular culture as well as the positive role they can play, such as raising awareness for a campaign addressing vaccine hesitancy among people from ethnic minority backgrounds.

The DCMS Committee is inviting written submissions on the following areas:

How would you define "influencers" and "influencer culture"? Is this a new phenomenon?
Has "influencing" impacted popular culture? If so, how has society and/or culture changed because of this side of social media?
Is it right that influencers are predominantly associated with advertising and consumerism, and if not, what other roles do influencers fulfil online?
How are tech companies encouraging or disrupting the activities of influencing?
How aware are users of the arrangements between influencers and advertisers? Should policymakers, tech companies and influencers and advertisers themselves do more to ensure these arrangements are transparent?

On the operation and impact of influencer culture, DCMS Committee Chair Julian Knight MP said "There's concern that while influencers are useful to advertisers in reaching the right markets on social media, there is a lack of transparency around the promotion of products or services. We'll be looking at whether there's a need for tighter regulation in this area and what form that might take".

Written submissions should be made by 7 May 2021. To access the inquiry pages, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

UK: Need To Know - 12th April 2021