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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.

The proposal for a DSC is contained in a Report from the Law Reform Commission (LRC) on Harmful Communications and Digital Safety, which also contains a draft legislative proposal. The LRC has recommended that the scope of regulation by the DSC should include all ‘digital service undertakings’, which would be defined very broadly to cover intermediary service providers, internet service providers, internet intermediaries, online intermediaries, online service providers, search engines, social media platforms and websites and telecommunications undertakings.

The DSC mechanism is partially inspired by the systems in place in Australia and New Zealand, which have specific timelines linked to the obligation to unlawful material, with removal generally being required within 48 hours. In Ireland, under the current LRC proposals, the DSC will be mandated to develop a national Code of Practice for Take Down procedure, which would contain detailed and practical guidance on the procedure for ‘takedowns’, a requirement that the takedown procedure is made available free of charge and timelines within which offending materials should be removed.

It should be noted that the Australian and New Zealand regimes were implemented on a somewhat blank legislative canvas. Any proposal in Ireland must be compliant with the overarching requirements of the eCommerce Directive (which does not contain mandatory timelines, but requires internet intermediaries to ‘act expeditiously’ or risk losing its legal immunity). It remains to be seen whether an additional layer of Irish regulation on tech and Internet companies would have any impact on Ireland’s international reputation as an attractive place to do business.

An Taoiseach Leo Varadkar had previously indicated that Government plans to appoint a DSC were ‘on hold’, however, he has since clarified that he may have ‘mis-spoken’.

The Department of Communications has organised an open digital safety forum on March 8 at the Royal Hospital Kilmainham involving Gardaí, Interpol, NGOs, state bodies and parents groups. We await further detail on this proposal.

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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

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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).

Background

Both the Consultation and the Fitness Check form part of the EC’s Regulatory Fitness and Performance (REFIT) programme, which aims to make EU law simpler, less costly and identify any inconsistencies and/or obsolete measures which may have appeared over time.

The Fitness Check carried out a comprehensive evaluation of six directives:

– the Unfair Commercial Practices Directive 2005/29/EC;

– the Unfair Contract Terms Directive 93/13/EEC;

– the Price Indication Directive 98/6/EC;

– the Consumer Sales and Guarantees Directive 1999/44/EC;

– the Injunctions Directive 2009/22/EC; and

– the Misleading and Comparative Advertising Directive 2006/114/EC.

In late May, the EC published its findings of its analysis of these six directives and its separate parallel review of the CRD. In brief, the EC found that “[t]he evaluations confirm that in general consumer law remains fit for purpose.” It did identify, however, the need to improve awareness, enforcement of the rules and redress opportunities to make the best of the existing legislation. It also stated that targeted legislative changes to address certain identified shortcomings of the directives could be beneficial.

Free Online/Digital Services

One of the shortcomings that the EC identified is that the CRD does not currently apply to the provision of ‘free’ online/digital services. ‘Free’ in this context means that the consumer does not pay with money for the service but instead provides data. Examples of this are cloud storage, social media or webmail, where the main contractual obligation of the trader is not to provide digital content but rather a service allowing the creation, processing, storing or sharing of data that is produced by the consumer.

The EC has stated that it will examine extending the scope of the CRD to include such contracts for ‘free’ digital services. This would extend traders’ pre-contractual information requirements and consumers’ 14 days right of withdrawal to any digital services. This singling out of the providers of ‘free’ digital services, demonstrates the EC’s continued focus on the digital economy and protecting consumers rights online.

The Consultation offers all citizens and organisations the opportunity to have their say on this matter along with other consumer law matters such as banning doorstop selling and better individual remedies for consumers harmed by unfair commercial practices including misleading “green” claims.

Timing

The Consultation will run for 14 weeks (June – October 2017). Click here for more details.

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The European Council has finalised its position on the directive setting out new rules relating to the supply of digital content and digital services, acknowledging it as a priority for the Digital Single Market. The makings of the proposed directive were initially presented by the European Commission in late 2015 as part of the move towards a connected digital single market.  On 8 June 2017, the European Council adopted its position on the scope of the proposed directive, the remedies for lack of supply and non-conformity, supplier liability and burden of proof restrictions.

Continue Reading Digital Single Market- Digital Content

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In Case C-375/15 (the BAWAG case), the CJEU examined the scope of a payment service provider’s obligation to communicate changes to information and conditions, and to framework contracts, to e-banking customers.  In particular, the CJEU considered whether a bank may notify its customers of account information and contractual changes via an electronic banking mailbox.  The CJEU clarified the conditions that must be met for information to be “provided” to customers on a “durable medium”, as required by the Payment Services Directive (PSD) (2007/64/EC).

Continue Reading Communicating with online banking customers

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In Muwema v Facebook Ireland Ltd [2017] IEHC 69, the Irish High Court refused to grant a Norwich Pharmacal order against Facebook, requiring disclosure of the identity and location of an anonymous third party operating a Facebook page containing defamatory content. The Court found that if Facebook disclosed such information it would endanger the life of the third party.  The Court held that the right to a good name must give way to the right to life and bodily integrity in the event of a conflict.

Continue Reading Court refuses Norwich Pharmacal order where compliance would threaten a person’s safety

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The High Court in Muwema v Facebook Ireland Ltd [2016] IEHC 519 held that Facebook had no duty to remove defamatory content posted by an anonymous third party. Justice Binchy did, however, make a Norwich Pharmacal order requiring Facebook to disclose the identity and location of the person operating the page involved.

Continue Reading ISP not required to remove defamatory statements

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In GS Media v Sanoma Media Netherlands and Others (C-160/15), the CJEU held that the posting of a hyperlink on a website, giving access to copyright-protected work on another website, will not constitute a "communication to the public" under Article 3(1) of the Copyright Directive 2001/29/EC, if the person posting the link did not do so to seek financial gain, and did not know that the hyperlink was published illegally without the consent of the copyright holder.  In contrast, if a hyperlink is provided for profit, knowledge of the illegality of the publication on the other website must be presumed.

Continue Reading CJEU finds linking to freely available but unauthorised content may not constitute copyright infringement

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The CJEU has confirmed the AG’s Opinion, in McFadden v Sony Music Entertainment Germany (C-484/14),  that operators of a free Wi-Fi service, who offer that service to the public, are not liable for copyright infringements committed by users of that network. However, such an operator may be required to password-protect its network in order to bring an end to, or prevent, such infringements.

Continue Reading Free WiFi providers not liable for users’ copyright infringements