Digital Media Legal Forum: A summary of the event

On 7 October 2015 we held our annual Digital Media Legal Forum, where experts from our London and European offices, along with a host of guest speakers, shared their insights on key legal and business developments in the digital media sector over the last 12 months. Read about what was covered below.

The topics and speakers at the event included:

• Schrems and the end of US Safe Harbor (Mark Taylor, Osborne Clarke);
• The EU Digital Single Market: Recent and anticipated developments (John Davidson-Kelly and Zoe Hare, Osborne Clarke);
• Net Neutrality: How might it affect your business? (Hannah Willson, Osborne Clarke);
• IP developments for digital media businesses (Varuni Paranavitane and Douglas Peden, Osborne Clarke);
• Developments in the world of interactive entertainment (Paul Gardner and Felix Hilgert, Osborne Clarke);
• In-game and in-app purchases (Paul Gardner with Guy Parker, Chief Executive of the Advertising Standards Authority); and
• The Consumer Rights Act 2015: Issues with digital content (John Davidson-Kelly with Gaynor Jeffrey and Yasna Reynolds of the Department for Business, Innovation and Skills)

Schrems and the end of Safe Harbor

Mark Taylor started things off with a review of the Court of Justice of the European Union decision in Schrems v Data Protection Commissioner, which has found invalid the Safe Harbor rules covering the transfer of personal data to the US. Mark provided some valuable tips on what tech, media and comms businesses could do to prepare themselves for this crucial change in law, such as Europe-only cloud solutions and incorporating Model Clauses into agreements.

The EU Digital Single Market: Where are we now and what’s on the horizon?

John Davidson-Kelly and Zoe Hare spoke on the current status of the EU Commission’s Digital Single Market initiative. Momentum has been growing over the last six months, with a number of consultations already underway and others about to start. However, final decisions have not yet been reached (and indeed are some way off) on many issues, so companies should ensure they take the time to lodge their responses now in order to make their concerns known and be in with a chance of shaping the outcome.

A number of the proposed reforms were considered, including:

• Geo-blocking: The European Commission launched its consultation on 24 September 2015. This builds on the Pay-TV investigation. Businesses that territorially restrict content might want to build provisions into agreements to ensure parties go back to the negotiating table if geo-blocking is ruled invalid. 
• Modernising copyright: The proposed harmonisation of European copyright regimes, with a particular focus on the accessibility and portability of digital content. The prevailing industry view is that portability might be acceptable, but there are serious logistical and commercial barriers to achieving pan-European accessibility. Also, a shift to pan-European licensing deals might well spell trouble for smaller players in the digital media sector. 
• Online platforms and Intermediaries: Following the EU Commission’s launch of a consultation on platforms (amongst other things) on 24 September 2015, it is still not entirely clear what might constitute a ‘platform’. In addition, online intermediaries might find themselves subject to a duty of care in relation to content hosted by websites on their network.
• Consumer law review: The Commission continues its attempt to solve the problem of 28 different consumer contract regimes. Watch this space for further reforms to European consumer law.
• E-commerce: An update on the Commission’s sector inquiry into e-commerce. A preliminary report is expected by mid-2016, with a final report sometime in the first quarter of 2017.
• Audio Visual Media Services (AVMS) Directive: The recently closed AVMS review will be relevant for online platforms that list content.
• Telecoms Review: What the Commission’s overarching review of all telecoms legislation might entail.

We will be running a platforms roundtable session in the next few weeks to deal with some of the issues facing online platforms in more detail. Please contact our events team if you would like to attend.

Net Neutrality: How might it affect your business?

Hannah Willson brought the often blurry issue of net neutrality into focus and discussed the status of the EU’s draft regulation. The regulation has been given Council approval and is due to go before Parliament at the end of October 2015 for a final vote. This is such an important topic at the moment for a variety of reasons, including the unprecedented demand for high speed internet access and the fact that some Member States have already started to impose (often restrictive) regimes, which could contradict the EU’s goal of achieving a harmonised approach.

IP developments for digital media businesses

IP litigator Varuni Paranavitane focused on web blocking orders: what they are; how content owners can use them to enforce against online copyright infringement; and their extension to cover trade-marks following the High Court decision in Cartier v BSkyB. Varuni also provided an overview of Starbucks (HK) v BSkyB and explained how one might establish a passing off claim in the sphere of online content platforms.

Douglas Peden then provided a recap of some significant case law developments in the digital media sector from the past year and drew out some takeaway points for the forum. Douglas tackled a number of issues, including linking and framing of protected content; when hosting a link might constitute broadcasting to a new public; format shifting and the exhaustion of digital rights. 

Developments in the world of interactive entertainment 

Paul Gardner discussed a number of interesting developments, including: (1) wobbles in the use of crowd-funding; (2) whether virtual “prizes” within games (such as swords and pots of gold coins) might count as money or money’s worth in the eyes of the Gambling Commission (they don’t, but this remains untested); and (3) the Online Safety Bill currently before the house of Lords.

Felix Hilgert then focused on the rough and tumble of German video game certification, including how to fight a ban and how to avoid your game getting banned in the first place. Felix explained that the recent decision of the German regulatory body to ‘un-ban’ some open world ‘gangster’ games, seen together with the decision not to ban Mortal Kombat X, may signal a more liberalised approach to classification.

In-game and in-app purchases

Paul Gardner and Guy Parker of the Advertising Standard Authority sat down for a ‘fireside chat’ about advertising and interactive entertainment. Guy provided some really valuable insights into in-app and in-game purchases, with the discussion covering the Bin Weevils and Moshi Monsters adjudications, how and when such purchases might become adverts and some ‘do’s and don’ts’ when dealing with apps and games likely to appeal to children. Guy also gave some useful clarity on when a game might be of particular appeal to children. Other topics included a look at some of the key points from CAP’s vlogger guidance and whether the ASA strayed into commenting on game-play commentary in the Dungeon Keeper ruling.

The Consumer Rights Act 2015: Issues with digital content

To round off the forum, John Davidson-Kelly was joined by two of the authors of the CRA, Gaynor Jeffrey and Yasna Reynolds of the Department of Business, Innovation and Sport, for a look at digital content under the new legislation.

The talk moved through a number of the CRA’s key provisions. Gaynor explained that fit for a particular purpose right was designed to address circumstances where one receives advice from a sales assistant (or where the consumer makes a particular purpose known to the trader). Click here for more information on the issues with digital content.