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The German Constitutional Court (Bundesverfassungsgericht) has delayed the ratification of the Unified Patent Court (UPC) Agreement. This is the result of a challenge to the UPC on constitutional grounds by a private individual who has not been named.

The German newspaper Frankfurter Allgemeine Zeitung, reported on 12 June, that the Federal Constitutional Court has requested the Federal President refrain from signing the legislation, until consideration has been given to the challenge. The Court is of the opinion that the challenge is not “hopeless” and therefore must be heard before the UPC can be ratified. The legislation had already been approved by Germany’s other legislative bodies (the Bundestag and the Bundesrat).

The UPC was due to become operational by December 2017. However, in a statement published on 7 June 2017, the UPC’s Preparatory Committee noted that this target would not be possible due to delays in the ratification process. The delay in ratification on the part of Germany is likely to be a significant factor in the future timeline of the Court, as Germany, along with the UK and France (who have ratified) are required to ratify the UPC Agreement before it can come into effect due to their status as the three EU member states with the highest number of patents.

The Agreement has been ratified so far by Austria, Belgium, Bulgaria, Denmark, France, Italy, Luxembourg, Malta, the Netherlands, Portugal, Sweden and Finland. Ireland has not yet ratified the UPC Agreement as a constitutional amendment to endorse the UPC must first be put to referendum.

 

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The Court of Justice of the European Union (CJEU) has handed down a reference for a preliminary ruling in Case C-610/15 (Stichtin Brein v Ziggo BV, XS4ALL Internet BV), holding that making available and managing an online platform for sharing copyright-protected works may constitute an infringement of copyright.

The case was brought by a Dutch anti-piracy group Stichtin Brein against two internet service providers and was referred to the CJEU by the Supreme Court of the Netherlands to seek clarification on a point of EU law.

The CJEU considered whether an internet sharing platform, such as ‘The Pirate Bay’, which makes available and manages the indexation of metadata relating to copyrighted works, was providing ‘communication to the public’ of copyrighted materials within the meaning of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. It was noted that although copyrighted material was placed online by users and not by the operators of ‘The Pirate Bay’, by indexing files to allow users locate and share protected works, it played “an essential role in making the works in question available.”

It was also noted that although ‘The Pirate Bay’ does not host content, it provides a torrent search engine, classifying files under different categories and providing access to protected material “with full knowledge of the consequences of their conduct.”

The case will now return to the Dutch courts for final determination on the issue, but the ruling strengthens the position of copyright holders throughout the EU who wish to hold online sharing platforms accountable.

 

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In Aldi Stores (Ireland) Limited and Aldi GMBH & Co. KG v Dunnes Stores [2017] IECA 116, Dunnes Stores (Dunnes) succeeded in its  appeal against a High Court ruling that its 2013 comparative advertising campaign against Aldi was contrary to EC (Misleading and Comparative Advertising) Regulations, 2007 (the 2007 Regulations) and the Consumer Protection Act, 2007 (the 2007 Act).

In essence, the Court of Appeal determined that the High Court applied the wrong test.  It did not make a decision as to whether the 2013 campaign was lawful, but criticised a number of adverse findings made by the High Court.

Continue Reading Comparative Advertising in the Court of Appeal

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The General Scheme of the Data Protection Bill 2017 was published last Friday and we have prepared a summary of its main provisions here.

The drafting of the Bill is a complex task. There is a need to repeal the provisions of the Data Protection Acts 1988 and 2003 that are replaced by the directly effective provisions of the GDPR, to transpose the Law Enforcement Directive (2016/680) and at the same time to give effect to provisions of the GDPR that require national implementing measures.

Although not stated definitively, it appears that consideration is being given to having a full repeal of the Data Protection Acts 1988 and 2003 with the new Act to be a consolidating measure. That would be a welcome development.

The stand out proposals of general interest in the Bill include:

  • Confirmation that only public authorities who compete with the private sector will be susceptible to administrative fines.
  • The proposal that additional due process in the form of an oral hearing or a written “right of reply” will be available under the new administrative sanctions procedure.
  • A new power of the DPC to direct that a controller/processer engage an independent reviewer to prepare a written report on any matter specified by the DPC with the cost of the report to be borne by the data controller/processor. This is an entirely new investigative mechanism that has been designed to deal with “large scale cases”.

We will provide regular updates on the Bill’s progress.

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The Article 29 Working Party (WP29) (consisting of data protection regulators from the 28 Member States) has adopted an Opinion 01/2017 on the proposed e-Privacy Regulation, which will repeal and replace the e-Privacy Directive. Whilst the WP29 welcomes the proposal, it identifies several points of concern, and sets out how the proposal can be improved.

Continue Reading WP29 gives lukewarm welcome to proposed e-Privacy Regulation

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The Article 29 Working Party (WP29) has proposed guidelines to help organisations identify when it is necessary to carry out a Data Protection Impact Assessment (DPIA) and how to do so. The guidelines are open to public comment until 23 May 2017.  DPIAs involve evaluating the potential impact that a new project will have on the privacy of individuals, and identifying ways to mitigate or avoid any adverse effects in advance of processing.  The GDPR requires DPIAs to be carried out when processing is likely to result in a “high risk” to the rights and freedoms of natural persons.

Continue Reading WP29 publishes draft guidelines on DPIAs

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The Data Protection Commissioner (DPC) has published her Annual Report for 2016.  It highlights key developments and activities of her Office last year, as well as priorities for 2017, which will be “all about GDPR readiness“.  2016 was a busy year for the DPC’s Office.  It dealt with an increased number of queries, complaints and data breach notifications. The DPC continued her engaged approach to regulation, engaging extensively with multinational companies, such as Facebook, LinkedIn, Apple and WhatsApp on proposed new policies, products and services, conducting over 100 face-to-face meetings. The DPC also engaged with a number of entities in the public, health and private/financial sectors.

Continue Reading Data Protection Commissioner publishes Annual Report for 2016

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The Article 29 Working Party (WP29) has issued its final guidance on Data Protection Officers (DPOs), Data Portability and Lead Supervisory Authority, in response to stakeholders’ comments. Some of the new points raised in the revised guidance are set out below.

Continue Reading WP29 issues final guidance on DPOs, Data Portability and Lead Authority

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In Rolf Anders Daniel Pihl v Sweden, the European Court of Human Rights (ECHR) agreed with Swedish authorities that a non-profit association was not liable for anonymous defamatory comments posted on its blog. The ECHR held that the Swedish authorities’ refusal to hold the owner of the blog liable for the anonymous defamatory online comment did not violate the European Convention on Human Rights (the Convention).

Continue Reading Blog owner not liable for anonymous defamatory online comments

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The Irish Commercial Court has ordered nine ISPs to block three websites offering illegal downloading or streaming of copyrighted movies and TV shows.  The action was brought by Motion Pictures Association, representing six film and TV studios.  The Court held that it was clear there had been infringement of copyright, that it would not result in the lawful use of the internet being interfered with and the order was proportionate to the damage being caused. None of the ISPs opposed the application for the injunction.  However one ISP raised concerns about cost implications of dealing with a large number of sites into the future, and asked the court to put a cap on the number of illegal website notifications a month, which movie companies could direct ISPs to block.  The Judge refused to grant a cap on notifications. Continue Reading Court orders ISPs to block illegal streaming websites