Category Archives: Intermediary Liability

CJEU Decision on Ziggo: The Pirate Bay Communicates Works to the Public

In the following piece, Christina Angelopoulos, Lecturer in Intellectual Property Law at the University of Cambridge and Associate Research Fellow at the Information Law & Policy Centre, analyses the recent decision of the CJEU in case C-610/15, Stichting Brein v Ziggo. The post was originally published on the Kluwer Copyright Blog.

On 14 June 2017, the CJEU handed down its highly anticipated decision in Case C-610/15, Stichting Brein v Ziggo. As was reported on this blog when the Advocate General’s Opinion was released, the case represents the first time that the liability proper (i.e. for damages, as opposed to mere injunctions) of an internet intermediary for copyright infringement has been considered at the European level.

The Court concluded that the intermediary in question – the peer-to-peer file-sharing website The Pirate Bay (TPB) – communicates works to the public. In the process, it has influenced the definition of direct copyright infringement in EU law and the range of actors which may be said to be engaging in it.

Background

The case arose in the Netherlands, where Stichting Brein, an anti-piracy organisation, applied to the Dutch courts for an injunction against internet access providers Ziggo and XS4ALL that would order them to block access to TPB for their customers. When the case came before it, the Dutch Supreme Court noted that the permissibility of injunctions of this kind is dependent on the correct interpretation of Article 8(3) of the InfoSoc Directive. According to this provision, Member States must ensure that copyright holders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe copyright.

The Dutch Supreme Court questioned whether the relevant ‘third party’ – in this case TPB – must be found to have committed direct copyright infringement itself before the obligation to ensure that injunctions are available to right holders can apply. As a result, what exactly TPB does became the focus of the case. As the CJEU explained, TPB is an indexer of BitTorrent files. BitTorrent is a protocol through which users can share files. In short, what TPB does is:

“[make available and manage], on the internet, a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.” [18]

The question before the court was therefore whether this activity amounts to a communication to the public and thus to copyright infringement.

[To continue reading this post on the Kluwer Copyright Blog, click here.]

Call for Papers – Children and Digital Rights: Regulating Freedoms and Safeguards

We are pleased to announce this call for papers for the Information Law and Policy Centre’s Annual Conference on 17 November 2017 at IALS in London, this year supported by Bloomsbury’s Communications Law journal. You can read about our previous annual events here.

We are looking for high quality and focused contributions that consider information law and policy within the context of children and digital rights. Whether based on doctrinal analysis, or empirical social research, papers should offer an original perspective on the implications posed by the data-driven society for the regulation of the digital rights of children and young adults, and the freedoms and safeguards therein.

Topics of particular interest in 2017 include:

  • Internet intermediary liability
  • Social media
  • Data privacy
  • Internet of Things
  • Cyber security
  • UN Convention on the Rights of the Child
  • Online games/apps
  • Digital education
  • The EU General Data Protection Regulation

The workshop will take place on Friday 17th November 2017 and will be followed by the Information Law and Policy Centre’s Annual Lecture and an evening reception.

Attendance will be free of charge thanks to the support of the IALS and our sponsor, although registration is required as places are limited.

The best papers will be featured in a special issue of Bloomsbury’s Communications Law journal, following a peer-review process. Those giving papers will be invited to submit full draft papers to the journal by 1st November 2017 for consideration by the journal’s editorial team.

How to apply:

Please send an abstract of between 250-300 words and some brief biographical information to Eliza Boudier, Fellowships and Administrative Officer, IALS: eliza.boudier@sas.ac.uk by Friday 14th July 2017 (5pm, BST).

Abstracts will be considered by the Information Law and Policy Centre’s academic staff and advisors, and the Communications Law journal editorial team.

About the Information Law and Policy Centre at the IALS:

The Information Law and Policy Centre (ILPC) produces, promotes, and facilitates research about the law and policy of information and data, and the ways in which law both restricts and enables the sharing, and dissemination, of different types of information.

The ILPC is part of the Institute of Advanced Legal Studies (IALS), which was founded in 1947. It was conceived, and is funded, as a national academic institution, attached to the University of London, serving all universities through its national legal research library. Its function is to promote, facilitate, and disseminate the results of advanced study and research in the discipline of law, for the benefit of persons and institutions in the UK and abroad.

The ILPC’s Annual Conference and Annual Lecture form part of a series of events celebrating the 70th Anniversary of the IALS in November.

About Communications Law (Journal of Computer, Media and Telecommunications Law):

Communications Law is a well-respected quarterly journal published by Bloomsbury Professional covering the broad spectrum of legal issues arising in the telecoms, IT, and media industries. Each issue brings you a wide range of opinion, discussion, and analysis from the field of communications law. Dr Paul Wragg, Associate Professor of Law at the University of Leeds, is the journal’s Editor in Chief.

Information Law and Policy in the General Election Manifestos

With the General Election fast-approaching, we have collected together a few blog posts from around the web that consider what the party manifestos say about information law and policy.

Paul Magrath, Head of Product Development and Online Content, discusses proposed changes to Media law as part of a more general review of law and justice policies. He identifies newspaper regulation as the big issue here: “Specifically,

  1. Should the Leveson inquiry recommendations be enforced in full, including the costs provisions of section 40 of the Crime and Courts Act 2013
  2. Should the second part of the Leveson inquiry go ahead?”

Chris Pounder has picked out all the relevant sections in the manifestos which relate to data protection and human rights (Article 8 and 10) issues. He says:

“The main controversy relates to the Conservative manifesto which hints at leaving the ECHR after the next General Election in 2022 and raises the prospect of the establishment of a national population register.”

Christopher Knight at 11KBW provides an entertaining look at the data protection elements of the manifestos (while also passing comment on the various aesthetic features). He considers the Lib Dems pledge to repeal or substantially re-write the Investigatory Powers Act 2016; Labour’s commitment to “strong data protection rules to protect personal privacy”; and the Conservatives’ “Digital Charter” as well as their proposals for the National Data Guardian for Health and Social Care, and a new “expert Data Use and Ethics Commission”.

If you like election manifestos presented infographically, then Rights Info has jazzed up the relevant sections on human rights for you. You’ll find ‘Privacy and Free Speech’ at the bottom of the section for each of the parties.

If you want to find out more about the approach taken to cybersecurity in the manifestos, please do come along to our free cybersecurity event this Monday where our expert panel will be looking at party policies and the fall out from the recent WannaCry attack. You can book online here.

Information Law Group 2nd Annual ‘Work in Progress’ Workshop

The Information Law Group at the University of Sussex warmly invites you to their 2nd Annual ‘Work in Progress’ Workshop on Wednesday 3rd May.

The workshop provides an opportunity to discuss current research and receive feedback in a highly focused, informal environment.

The event is preceded by a PhD workshop (11-1pm) and followed by a lecture by Rob Wainwright, Director of Europol (5.30-6.30pm), entitled “The Role of Europol in Countering Organised Crime and Terrorism”.

Book Now

AGENDA

2.00pm – 3.30pm “Challenges to Competition Law in Information Markets”

Chair: Dr Judith Townend (Sussex); Discussant: Prof Chris Marsden (Sussex)

  • Dr Konstantinos Stylianou (Leeds) “Redefining Normal Competition: The Case Study of the ICT Industry”
  • Dr Konstantina Bania (EBU, TILEC) “The role of consumer data in the enforcement of competition laws”
  • Dr Nico Zingales (Sussex) “The rise of ‘infomediaries’ and its implications for antitrust enforcement”

3.30pm – 4.00pm Coffee Break

4.00pm – 5.30pm “Intermediary Platform Responsibility”

Chair: Prof Chris Marsden (Sussex); Discussant: Orla Lynskey (LSE)

  • Dr Andres Guadamuz (Sussex), “Whatever happened to our dream of an empowering Internet (and how to get it back)”
  • Dr David Erdos (Cambridge), “Intermediary Publisher Responsibility for Third Party Rights in European Data Protection”
  • Dr Felipe Romero Moreno (Hertfordshire), “The fake-news phenomenon in the 2016 post-crisis digital era”

5.30pm – 6.30pm Lecture: Rob Wainwright, Director of Europol “The Role of Europol in Countering Organised Crime and Terrorism”.

AG Szpunar in Stichting Brein v Ziggo: An Indirect Harmonisation of Indirect Liability?

In the following piece, Christina Angelopoulos, Lecturer in Intellectual Property Law at the University of Cambridge, analyses the recent Opinion by AG Szpunar in case C-610/15, Stichting Brein v Ziggo. The post was originally published on the Kluwer Copyright Blog.

On 8 February, Advocate General Szpunar handed down his Opinion on Stichting Brein v Ziggo. The case is significant, as it represents the first time that the liability of an internet intermediary for copyright infringement will be considered by the CJEU. To date, all decisions handed down by that court on intermediary liability have instead concentrated on the related question of injunctions against intermediaries whose services are used by third parties to infringe.

Questions Referred

The case finds its origins in the Netherlands, where Stichting Brein, a Dutch anti-piracy organisation, applied for an injunctive order against internet access providers Ziggo and XS4ALL that would require them to block access for their customers to the peer-to-peer file-sharing website The Pirate Bay (TPB).

That application was upheld at first instance, but dismissed on appeal, on the grounds that, first, it is the customers of Ziggo and XS4ALL, and not TPB itself, who are the originators of the copyright infringements and, secondly, that the blocking sought would not be proportionate to the aim pursued, i.e. the effective protection of copyright.

The case eventually made it before the Hoge Raad, the Dutch Supreme Court, which decided to submit two questions to the CJEU. Essentially, these ask the following:

  1. Does TPB, by providing a system through which metadata on protected works that are present on its users’ computers is indexed and categorised, thus enabling those users to trace, upload and download the works, engage in a communication to the public of those works for the purposes of EU copyright law?
  1. If the answer to Question 1 is negative, may an injunction nevertheless be issued against Ziggo and XS4ALL, requiring them to block access for their customers to TPB?

It should be noted from the outset that these two questions are seen by the Dutch court as interconnected. The Hoge Raad is essentially querying whether TPB must be an infringer before access to it may be blocked.

[To continue reading this post on the Kluwer Copyright Blog, click here.]

New Study on Intermediary Liability and European Copyright Reform

Dr Christina Angelopoulos, associate research fellow at the Information Law & Policy Centre and lecturer at the University of Cambridge, has authored a study entitled ‘On Online Platforms and the Commission’s New Proposal for a Directive on Copyright in the Digital Single Market’.

The study, commissioned by MEP Julia Reda, evaluates the provisions of the European Commission’s Proposal of 14 September 2016 for a Directive on Copyright in the Digital Single Market that are relevant to the issue of intermediary liability.

The study concludes that key elements of these provisions are incompatible with existing EU directives, as well as with the Charter of Fundamental Rights of the EU.

In particular, the study suggests that the Proposal misinterprets EU copyright and related rights law by implying that intermediaries that allow users to host content in a public manner are themselves performing an act of communication to the public. The study argues that acts of facilitation of third party copyright infringement are instead the rightful domain, not of primary, but of accessory liability, an area of copyright and related rights law that has not yet been harmonised at the EU level.

Continue reading

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

dsc_0892  dsc_0896  dsc_0898

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.

Continue reading

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.

copyright-40632_1280

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.]