Category Archives: Intermediary Liability

New Special Issue of Communications Law: Information control in an ominous global environment

Communications Law JournalThe Information Law and Policy Centre is pleased to announce the publication of a special issue of the Communications Law journal based on papers submitted for our annual workshop last November. The journal articles are available via direct subscription, through the Lexis Library (IALS member link) and (coming soon) Westlaw.

In the following editorial for the special issue, Dr Judith Townend, Lecturer in Media and Information Law, University of Sussex, (the outgoing Director of the ILPC, Institute of Advanced Legal Studies) and Dr Paul Wragg, Associate Professor of Law, University of Leeds discuss the challenges of information control in an ominous global environment.

This special issue of Communications Law celebrates the first anniversary of the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. It features three contributions from leading commentators who participated in the ILPC’s annual conference ‘Restricted and redacted: where now for human rights and digital information control?‘, which was held on 9 November 2016 and sponsored by Bloomsbury Professional.

The workshop considered the myriad ways in which data protection laws touch upon fundamental rights, from internet intermediary liability, investigatory and surveillance powers, media regulation, whistle-blower protection, to ‘anti-extremism’ policy. We were delighted with the response to our call for papers. The conference benefited from a number of provocative and insightful papers, from academics including Professor Gavin Phillipson, Professor Ellen P Goodman, Professor Perry Keller and Professor David Rolph as well as Rosemary Jay, Mélanie Dulong de Rosnay, Federica Giovanella and Allison Holmes, whose papers are published in this edition.

The date of the conference, by happenstance, gave extra piquancy to the significance of our theme. News of Donald J Trump’s election triumph spoke to (and continues to speak to) an ominous and radically changed global environment in which fundamental rights protection takes centre stage. But as Trump’s presidency already shows, those rights have become impoverished in the rush to promote nationalism in all its ugly forms.

In the UK, the popularism that threatens to rise above all other domestic values marks a similar threat, in which executive decision-making is not only championed but also provokes popular dissent when threatened by judicial oversight. The Daily Mail’s claim that High Court justices were ‘enemies of the people’ when they sought to restrict the exercise of unvarnished executive power reminds us that fundamental rights are seriously undervalued.

Perhaps we should not be surprised at these events and their potential impact on communication law. In February 2015, at the ILPC’s inaugural conference Dr Daithí Mac Síthigh delivered a powerful paper in which he noted the rise of this phenomena in the government’s thinking on information law and policy under the Coalition Government 2010-15. In his view, following an ‘initial urgency’ of libertarianism, the mood changed to one of internet regulation or re-regulation. Such a response to perceived disorder, though not unusual, was ‘remarkable’ given how the measures in this field adopted during these final stages of the last government had been ‘characterised by the extension of State power in a whole range of areas.’ We should also note the demise of liberalism in popular thought. That much criticised notion which underpins all fundamental rights seems universally disclaimed as something weak and sinister. All of this speaks to a worrisome future in which the fate of the Human Rights Act remains undecided.

Concerns like these animate the papers in this special issue. The contribution from leading data protection practitioner Rosemary Jay, Senior Consultant Attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice, is entitled ‘Heads and shoulders, knees and toes (and eyes and ears and mouth and nose…)’. Her paper discusses the rise of biometric data and restrictions on its use generated by the General Data Protection Regulation. As she notes, sensitive personal data arising from biometric data might be more easily shared, leading to loss of individual autonomy. It is not hard to imagine the impact unrestricted data access would have – the prospective employer who offers the job to someone else because of concerns about an applicant’s cholesterol levels; the partner who leaves after discovering a family history of mental ill heath; the bank that refuses a mortgage because of drinking habits. As Jay concludes, consent will play a major role in regulating this area.

In their paper, Federica Giovanella and Mélanie Dulong de Rosnay discuss community networks, a grassroots alternative to commercial internet service providers. They discuss the liability issues arising from open wireless local access networks after the landmark Court of Justice of the EU decision in McFadden v Sony Music Entertainment Germany GmbH. As they conclude, the decision could prompt greater regulation of, and political involvement in, the distribution of materials through these networks which may well represent another threat to fundamental rights.

Finally, Allison M Holmes reflects on the impact of fundamental rights caused by the status imposed on communication service providers. As Holmes argues, privacy and other human rights are threatened because CSPs are not treated as public actors when retaining communications data. As she says, this status ought to change and she argues convincingly on how that may be achieved.

Call for papers: Critical Research in Information Law

Deadline 15 March 2017

The Information Law Group at the University of Sussex is pleased to announce its annual PhD and Work in Progress Workshop on 3 May 2017. The workshop, chaired by Professor Chris Marsden, will provide doctoral students with an opportunity to discuss current research and receive feedback from senior scholars in a highly focused, informal environment. The event will be held in conjunction with the Work in Progress Workshop on digital intermediary law.

We encourage original contributions critically approaching current information law and policy issues, with particular attention on the peculiarities of information law as a field of research. Topics of interest include:

  • internet intermediary liability
  • net neutrality and media regulation
  • surveillance and data regulation
  • 3D printing
  • the EU General Data Protection Regulation
  • blockchain technology
  • algorithmic/AI/robotic regulation
  • Platform neutrality, ‘fake news’ and ‘anti-extremism’ policy.

How to apply: Please send an abstract of 500 words and brief biographical information to Dr Nicolo Zingales  by 15 March 2017. Applicants will be informed by 30 March 2017 if selected. Submission of draft papers by selected applicants is encouraged, but not required.

Logistics: 11am-1pm 3 May in the Moot Room, Freeman Building, University of Sussex.

Afternoon Workshop: all PhD attendees are registered to attend the afternoon workshop 2pm-5.30pm F22 without charge (programme here).

Financial Support: Information Law Group can repay economy class rail fares within the UK. Please inform the organizers if you need financial assistance.

Information Law and Policy Centre’s annual workshop highlights new challenges in balancing competing human rights

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Our annual workshop and lecture – held earlier this month – brought together a wide range of legal academics, lawyers, policy-makers and interested parties to discuss the future of human rights and digital information control.

A number of key themes emerged in our panel sessions including the tensions present in balancing Article 8 and Article 10 rights; the new algorithmic and informational power of commercial actors; the challenges for law enforcement; the liability of online intermediaries; and future technological developments.

The following write up of the event offers a very brief summary report of each panel and of Rosemary Jay’s evening lecture.

Morning Session

Panel A: Social media, online privacy and shaming

Helen James and Emma Nottingham (University of Winchester) began the panel by presenting their research (with Marion Oswald) into the legal and ethical issues raised by the depiction of young children in broadcast TV programmes such as The Secret Life of 4, 5 and 6 Year Olds. They were also concerned with the live-tweeting which accompanied these programmes, noting that very abusive tweets could be directed towards children taking part in the programmes.

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EU Copyright Reform: Outside the Safe Harbours, Intermediary Liability Capsizes into Incoherence

In the following piece, Christina Angelopoulos, lecturer in intellectual property law at the University of Cambridge, analyses the aspects of the Commission’s new proposal for the digital single market directive that are relevant to intermediary liability. The post was originally published on the Kluwer Copyright Blog.

As has by now been extensively reported, on 14th September the European Commission released its new copyright reform package. Prominent within this is its proposal for a new Directive on Copyright in the Digital Single Market.

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The proposal contains an array of controversial offerings, but from the perspective of this intermediary liability blogger, the most interesting provision is the proposed Article 13 on ‘Certain uses of protected content by online services’. This is highly problematic in a number of different ways.

The Supposed Problem

As the Communication on a fair, efficient and competitive European copyright-based economy in the Digital Single Market (which was released in parallel to the proposal) explains, the new Article 13 is intended to address what in Brussels parlance over the past year has come to be termed the ‘value gap’. This refers to the idea that revenues generated from the online use of copyright-protected content are being unfairly distributed between the different players in the value chain of online publishing. A distinction is usually drawn in this regard between ad-funded platforms, such as YouTube, Dailymotion and Vimeo, and subscription-funded platforms, such as Spotify or Netflix. While the latter require the consent of copyright-holders to operate legally, the business model of the former revolves around user-created content (UCC). As a result, they tend to focus not on copyright licensing, but on notice-and-takedown systems, which allow them to tackle any unwanted infringements of copyright snuck onto their websites by their users. [To continue reading this post on the Kluwer Copyright Blog, click here.]

C-494/15 – Tommy Hilfiger: No Difference between Online and Real World Marketplaces for IP Enforcement

In the following piece, Christina Angelopoulos, post-doc researcher at the Information Law and Policy Centre of the University of London, analyses the recent judgment of the CJEU in case C-494/15 Tommy Hilfiger. The post was originally published on the Kluwer Copyright Blog.

On 7 July 2016, the CJEU (Court of Justice of the European Union) handed down its decision in Tommy Hilfiger (case C-494/15). The case concerned the imposition of an injunction on Delta Center, a company that sublets sales areas in the “Prague Market Halls” (Pražská tržnice) to traders, after it was found that counterfeit goods were sold in the marketplace.

The requested injunction would require that Delta Center refrain from: a) renting space to persons previously found by the courts to have engaged in trademark infringement; b) include terms in their rental contracts that oblige market traders to refrain from infringement; and c) publish an apology for past infringements by third party traders. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

The socio-legal aspects of 3D printing: Between “chaos” and “control”

Socio-legal aspects bookNot so long ago 3D printing was being discussed alongside the internet, file sharing and digital currencies as a sign of the beginning of an era of post-control and post-scarcity.

There were fears that governments would struggle to regulate the activities of a new generation of “prosumers” (producer-consumers) and that economic and legal certainties would be challenged by an increase in the decentralised “free” supply of goods.

Last night, at the Information Law and Policy Centre, Dr Angela Daly and Dr Dinusha Mendis presented a more nuanced view of the prospects of 3D printing as a “disruptive” technology to mark the launch of Daly’s new book, Socio-Legal Aspects of the 3D Printing Revolution.

Daly, a research fellow at Queensland University of Technology Faculty of Law, shared findings from postdoctoral research at the Swinburne University of Technology considering the legal aspects of 3D printing from the standpoint of the US, UK-EU and Australian legal systems.

s200_angela.dalyDaly’s transnational lens enabled her to identify a number of divergent legal approaches to 3D printing in relation to exceptions to infringement, intermediary liability, copyright and DMCA takedowns.

She found that the legal implications of 3D printing were hard to generalise despite attempts at the harmonisation of international law. More often the legal status of 3D printing was both nationally and scenario specific. To this end, Daly noted that it would also be interesting to research how legal jurisdictions in emerging economies were tackling 3D printing.

Focussing particularly on the potential problems created for Intellectual Property law by 3D printing, Daly concluded that the technology was neither leading to “total chaos” nor “total control”.

She highlighted that 3D printing has not yet become a mainstream practice – despite entry level 3D printers selling for around £500, far fewer people own one than they do a smartphone or computer. Daly also emphasised that incumbent businesses and companies are incorporating 3D printing into their business models.

She stated, therefore, that although there was some chaos around the edges – such as the ability for people to print 3D guns – the overall picture was that from a socio-legal perspective the technology was not currently particularly ‘disruptive’.

Dinusha MendisDaly’s position was reinforced by a presentation from Dr Dinusha Mendis, Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM) at Bournemouth University. Mendis has conducted research on the Intellectual Property and Copyright implications of 3D printing including work which was commissioned by the UK government’s Intellectual Property Office.

Of fundamental concern here is the potential illegal copying and use of the computer-aided design (CAD) files required to print objects in 3D. Her research identified hundreds of online platforms for the distribution of 3D printing files which were providing access to hundreds of thousands of designs.

Mendis’ research into online platforms reveals that interest in 3D printing has grown immensely between 2008 and 2014, but she identified limitations to the spread of the practice.

Potential users do not always have access to the right materials, funds to be able to purchase more sophisticated printers or the legal knowledge to license their work. Moreover, companies and businesses in this field informed her that there was currently little commercial impact on either automotive or domestic products. They predicted that 3D printing would remain limited for the next five to ten years.

For both Mendis and Daly, then, 3D printing has not yet lived up to initial hype over its ‘disruptive’ potential. Mendis recommended a ‘wait and see’ approach to UK government, concerned that legislating too hastily in this area might stifle creativity.

Nevertheless, as 3D printing technology improves and becomes cheaper, it might become the focus of increasing interest for legal scholars in the future.

Further Reading

A. Daly (2016) Socio-Legal Aspects of the 3D Printing Revolution, Palgrave MacMillan: UK
D. Mendis (2015) A Legal and Empirical Study into the Intellectual Property Implications of 3D Printing.
D. Mendis (2014) “Clone Wars”: Episode II – The Next Generation: The Copyright Implications relating to 3D Printing and Computer-Aided Design (CAD) Files. Law, Innovation and Technology, 6 (2), 265-281.
D. Mendis (2013) ‘The Clone Wars’ – Episode 1: The Rise of 3D Printing and its Implications for Intellectual Property Law – Learning Lessons from the Past?,  European Intellectual Property Review, 35 (3), 155-169.

CJEU AG suggests that free Wi-Fi providers may not be ordered to password protect their networks

Christina Angelopoulos is a post-doc researcher at the Information Law and Policy Centre of the University of London. She wrote her PhD on intermediary liability in copyright at the Institute for Information Law (IViR) of the University of Amsterdam. In the following piece, she analyses the Opinion of the Advocate General Szpunar recently handed down in Mc Fadden. The post was originally published on the Kluwer Copyright Blog.

On 16 March 2016 the CJEU’s Advocate General Szpunar handed down his Opinion in case C-484/14, Mc Fadden. The case concerns the liability of Tobias Mc Fadden, the owner of a business selling lighting and sound systems in Munich. Mr Mc Fadden operates a Wi-Fi hotspot on the business’ premises, deliberately left unprotected by a password, so as to enable free public access to the internet. In September 2010, that internet connection was used for the unlawful download of a musical work by one of the network’s anonymous users. The owner of the relevant copyright, Sony Music, decided to bring an action against Mc Fadden, seeking both damages and an injunction. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

MTE v Hungary: New ECtHR Judgment on Intermediary Liability and Freedom of Expression

Christina Angelopoulos is a post-doc researcher at the Information Law and Policy Centre of the University of London. She wrote her PhD on intermediary liability in copyright at the Institute for Information Law (IViR) of the University of Amsterdam. In the following piece, she analyses the recent judgment of the ECtHR in MTE v Hungary. The post was originally published on the Kluwer Copyright Blog.

On 2 February 2016, the European Court of Human Rights (ECtHR) delivered its first post-Delfi judgment on the liability of online service providers for the unlawful speech of others. Somewhat puzzlingly, the Court reached the opposite conclusion from that of last summer’s controversial Grand Chamber ruling, this time finding that a violation of Article 10 of the European Convention on Human Rights (ECHR) had occurred through the imposition of liability on the applicant providers. While in principle therefore the judgment is good news for both internet intermediaries and their end-users, the ruling does little to dispel the legal uncertainty that plagues the area: attempting to reverse and head off in the right direction, the Court still finds itself falling over the stumbling blocks it set out for itself last year. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]