The new Consumer Protection Cooperation Regulation (CPC) was passed on 14 November 2017, with the goal of providing enforcement authorities with additional powers to combat unlawful online practices. The CPC will also help harmonise consumer protection law across the EU. While the CPC is sure to aid compliance, it remains to be seen how far-reaching some of the powers will become, in particular, the website-blocking power referred to below.
On 26 July 2017 the Court of Justice of the European Union (CJEU) delivered its Opinion that the draft Passenger Name Record (PNR) Agreement between the EU and Canada is not compatible with the EU Charter of Fundamental Rights (the Charter) and may not be concluded in its current form. The Opinion follows a referral by the European Parliament to the CJEU and is the first time the Court has been requested to examine the compatibility of an international agreement with the EU Charter.
The Court observed that the Charter rights are not absolute, and that an agreement allowing for the transfer and retention of data to ensure public security would be capable of justifying even serious interference with fundamental rights such as privacy and personal data protection. Any such interference should, however, be (1) proportionate, (2) strictly necessary and (3) guided by clear and precise rules governing its scope and application. The transfer of sensitive data would also require a precise and solid justification in addition to that of public security and the Court concluded that in this instance, there was no such justification.
Retention of Data
The envisaged Agreement provided that PNR data may be retained by Canada for five years after receipt of such data. The Court observed that the retention of data for the duration of a visitor’s stay in Canada did not exceed the limits of what is strictly necessary, but noted that as PNR data would be used as part of the verification process to grant entry into the territory, subsequent use of that data would require fresh justification by way of new circumstances or objective evidence. The Court suggested that except in cases of valid urgency, any decision by Canadian authorities to use PSN data after entry has been granted should be subject to prior review by a court or independent body. The retention of data after departure from Canada should also be limited to air passengers only when there is objective evidence available inferring a terrorism or crime risk.
The Court declared that as a number of other provisions were vague and did not adequately address the processing of PNR data in a clear and precise manner, it was not satisfied that the Agreement in its current form was compatible with the Charter.
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.
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.
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.
In Aldi Stores (Ireland) Limited and Aldi GMBH & Co. KG v Dunnes Stores  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.
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).
In Muwema v Facebook Ireland Ltd  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.
EU consumers of online content services such as Netflix, Spotify or Sky Sports will soon be able to access their subscriptions while on holiday in or when otherwise visiting another Member State, due to the lifting of existing restrictions by a proposed new EU Regulation.
In an earlier blog, we outlined that the UK confirmed its intention to ratify the International Agreement on a Unified Patent Court. In December 2016, the UK government proceeded to sign the Protocol on Privileges and Immunities of the Unified Patent Court. The Protocol provides EU privileges and immunities to the judges of the Unified Patent Court necessary for the exercise of its functions. The Protocol is required in the individual countries hosting divisions of the court, one of which is in London. This positive step would suggest that the UK is moving closer towards ratification.