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As part of our sector-focused series, we have spoken with our in-house Telecoms, Media & Technology (TMT) PSLs to outline the key legal trends to watch as 2019 draws to a close.
The government Online Harms White Paper is facing heavy criticism which focuses on the lack of clarity in the definition of key terms and the potential impact on freedom of speech.
The paper outlines the government’s plans to establish a statutory duty of care - which the government itself acknowledges would be a global first - to ensure that companies safeguard online users and tackle harm caused by activity on their services. Companies will be held to account by an independent regulator who will be tasked with issuing codes of practice.
One of the main concerns is that the paper proposes no definition of the ‘harm’ that must be prevented. In fact, it seems to be the government’s intention to avoid a static or fixed list which might hamper the new regulator’s efforts to address evolving forms of harm.
This means that it will be up to the regulator to decide and places great power in its hands. Used improperly, there could be a significant adverse impact on freedom of speech, privacy or the right of individuals to access legitimate content online.
The government is currently considering the responses to its consultation on the paper and has indicated that it plans to bring forward legislation when time allows.
Since the Digital Single Market Copyright Directive was published in the Official Journal in June this year, Article 17 has hit the headlines on several occasions as a blocker for those posting content online.
Article 17 states that content-sharing services, such as YouTube, must correctly license copyright-protected material from the rights holders. Effectively, a tech platform, such as YouTube will be targeted with claims of infringement for any uploaded content that violates copyright rules.
Article 17 makes it clear that no ‘general monitoring obligation’ is placed on platforms, they must act ‘expeditiously, upon receiving a sufficiently substantiated notice from the right holders, to disable access to, or to remove from, their websites the notified works or other subject matter, and make best efforts to prevent their future uploads’.
France has implemented some parts of the directive and is set to implement article 17 imminently (October/November 2019). Evidently, France’s progress will be watched closely by UK stakeholders. The UK will have to decide whether to implement the directive before leaving the EU, and what to take from the directive in the wake of Brexit.
Last year, the government confirmed the planned investment for the roll-out of 5G and full-fibre broadband across the UK. This year, we have seen substantial development in this area, with EE becoming the first provider to switch on the UK’s first 5G network in five cities in May 2019. Vodafone followed suit in July, and O2 this October – making it one of the most talked-about and important topics in telecoms circles.
However, the new technology is not without its challenges.
A report from the European Commission (see https://europa.eu/rapid/press-release_IP-19-6049_en.htm) identifies a number of potential cybersecurity issues – including an increase in the risk of exposure to attacks and more potential entry points for cyberattackers – for which mitigating measures will need to be introduced.
Nonetheless, it is unequivocal, game-changing technology, expected to eventually result in one to 10Gbps connections to end points in the field and a 90% reduction in network energy usage.
It is also seen as a pre-requisite to the widespread deployment of autonomous vehicles and other emerging technologies that require a reliable and fast network connection.
The European Union’s plans to replace the ePrivacy Directive (implemented in the UK by the Privacy and Electronic Communications (EC Directive) Regulations 2003) seem to be going nowhere fast.
The scope of the proposed regulation is broader than the current law in that ‘over-the-top’ providers, such as WhatsApp or Facebook Messenger, will be included as well as WiFi and machine-to-machine (M2M) technology providers.
The process was started by the European Commission in 2017 and it was intended that the regulation would come into effect simultaneous with the GDPR.
However, the draft seems to remain stuck in the Council of the EU, with delegates unable to find a way forward on controversial issues such as cookie walls, the relationship of the regulation with the GDPR, the extent that processing is permitted for the purposes of detecting and deleting child abuse imagery and various other issues.
A recent chorus of voices from industry have called for legislators to scrap the draft and start again. With this impasse, and the two-year implementation period included in the current draft, it is hard to see the regulation coming into effect before 2022.
Key dates you need to know, publications and announcements relating to legal issues in TMT.
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Amy is an established writer and researcher, having contributed to publications, such as The Law Society, LPM, City A.M. and Financial IT. Her role at LexisNexis UK involved leading content and thought leadership, as well as writing research reports, including "The Bellwether Report 2020, Covid-19: The next chapter" and "Are medium-sized firms the change-makers in legal?"
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