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On 6 April 2020, the Data Protection Commission (DPC) published a report on the use of cookies and other tracking technologies (Report) and an updated guidance note on cookies and other tracking technologies (Guidance).

The Report is based on a review carried out by the DPC of websites in various sectors in Ireland, including insurance, banking, media, retail and the public sector. The purpose of the DPC’s report was to examine whether organisations are complying with the law, and, in particular, how organisations are obtaining the consent of users for the use of cookies. The majority of the 38 organisations examined were found to have potential compliance issues, particularly in relation to reliance on implied consent for setting non-necessary cookies; lack of choice for users to reject all cookies; bundling of consent for all purposes; and the possible misclassification of cookies as “necessary” or “strictly necessary“.  The Report gives an overview of the responses received highlighting what the DPC considers to be both “good” and “bad” practices that it encountered on the websites, and the Guidance provides website operators with guidance on how to comply with the rules relating to cookies, which are set out in the Irish ePrivacy Regulations.


Continue Reading DPC publishes Report and Guidance on cookies following a “cross-sector and cross-size” sweep of website operators

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The UK government has published its initial consultation response on the Online Harms White Paper (see our previous post here). The new regulatory framework proposes introducing a ‘duty of care’ on online services in respect of harmful content. The government’s initial response reports on the findings from the public consultation, and provides an indication of how the legislation will be taken forward.
Continue Reading Online Harms White Paper – UK government publishes its initial consultation response

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In Amazon EU Case C-649/17, the Court of Justice of the European Union (CJEU) held that the Consumer Rights (CR) Directive 2011/83/EU does not require an e-commerce platform to make a telephone number available to consumers before the conclusion of a contract. It is sufficient for traders, when concluding distance contracts with consumers, to use other means of communications, such as online chat services or telephone call-back, as long as consumers have a means of contacting traders quickly and efficiently.

Continue Reading E-Commerce platforms not obliged to make telephone number available to consumers

Photo of Davinia Brennan

In the case of Eva Glawischnig-Piesczek v Facebook Ireland Ltd (Case C-18/18), the Advocate General (AG) of the Court of Justice (CJEU) was asked to clarify the scope of the obligation that may be imposed on a host provider to remove illegal information. Article 15(1) of the e-Commerce Directive 2000/31/EC (the Directive) prohibits Member States from imposing a general monitoring obligation on host providers, and the CJEU considered whether that provision precludes a court, in the context of an injunction to remove notified illegal content, from ordering a host provider to seek and identify identical or equivalent illegal content. The CJEU also considered the territorial scope of a removal obligation, and whether removal could be ordered on a worldwide basis.

In his Opinion, AG Szpunar concluded that a host provider may be ordered to remove not only notified illegal content, but to seek and identify among the information disseminated by any user of that platform, information ‘identical’ to that which has been characterised as illegal by a court. In addition, a host provider may be ordered to seek and identify information ‘equivalent’ to that characterised as illegal, but only among the information disseminated by the original user, and not by any user.  The AG also considered that since the Directive does not regulate the territorial scope of an obligation to remove information disseminated via a social network platform, it does not preclude a host provider from being ordered to remove such information on a worldwide basis. Whilst the AG’s Opinion is not binding on the CJEU, it will be of persuasive value.
Continue Reading Advocate General delivers significant Opinion on scope of host providers’ obligation to remove illegal content

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On 17 April 2019, the European Parliament approved a new Regulation on platform-to-business trading practices. It requires online platforms and online search engines to comply with certain legal obligations and also encourages them to take voluntary complimentary steps. The Regulation aims to ensure that businesses using online intermediation services and general online search engines have greater certainty and clarity with respect to the rules governing their relationships with these platforms and how to resolve potential disputes.

The text adopted by the European Parliament has not yet been formally approved by the Council of the EU. Once approved, the Regulation will enter into force 12 months after its publication in the Official Journal.


Continue Reading European Parliament agrees new rules to improve fairness of online platforms

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Last week MoneyConf firmly put Dublin in the Fintech spotlight. The pressure on financial services firms to make better use of technology to reduce costs and improve customer service shows no sign of relenting. At the same time they need to carefully navigate the related regulatory challenges around technology outsourcing. A member of the ECB Supervisory Board recently observed that banks are not “technological houses” and said that the fragmentation of banks’ services across a range of external providers creates a “challenge” for banks’ leaders, who retain responsibility. This statement will resonate, in particular, with financial institutions looking to understand how much they are currently using, and how they can make more and better use of, cloud based technology solutions.

Continue Reading European Banking Authority Recommendations on Outsourcing to Cloud Service Providers

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The Minister for Communications, Denis Naughten, has confirmed that plans to appoint a Digital Safety Commissioner for Ireland (DSC) will go ahead in 2018. The DSC will act as an ‘Internet regulator’, with powers of enforcement and responsibility for a ‘notice and takedown’ regime, to ensure the online safety of Internet users.

Continue Reading Digital Safety Commissioner to be appointed in 2018

Photo of Davinia Brennan

The EU Court of Justice (CJEU) has ruled that a supplier of luxury goods can, by contract, prohibit its authorised distributors from selling those goods on third-party internet platforms such as Amazon. The CJEU held that such a prohibition is appropriate; does not in principle go beyond what is necessary to preserve the luxury image of the goods; and is not necessarily an unlawful restriction of competition (Coty Germany GmbH v Parfümerie Akzente GmbH (Case C-230/16)).

Continue Reading CJEU rules suppliers of luxury brands can lawfully prohibit resale via third party internet platforms

Photo of Eoghan O'Keeffe

Heading into the Christmas period, festive shoppers may notice an increasing number of retailers are offering receipts via email (e-receipts) rather than the traditional paper docket. Providing a receipt through email has a number of advantages for retailers and consumers. There is the obvious environmental benefit and it provides an easier means for customers to store and find receipts than an over-stuffed wallet.

However, new guidance from the Data Protection Commissioner (DPC) has stressed the need for retailers to ensure that when customers provide their details for the purpose of receiving e-receipts, they should be fully informed and consent to how that data may be used. Of central concern is the retailers’ use of email addresses for subsequent direct marketing.


Continue Reading DPC publishes guidance on e-receipts

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The European Commission (EC) has opened an online public consultation on the targeted revision of EU consumer law (the Consultation). The Consultation follows the EC’s publication of the results of its Fitness Check on consumer and marketing law and of the evaluation of the Consumer Rights Directive (Directive 2011/83/EU) (the CRD).

Continue Reading European Commission opens public consultation on EU Consumer Law