Legal & Government Affairs Update Issue 11 - 2017
Facebook: the new home of fake goods?
As part of the ongoing British investigation into the sale of counterfeit goods online (Operation Jasper), officials have accused Facebook of failing to do enough to prevent fake items being sold on the site. The investigation identified tens of thousands of knock off products being listed for sale, some of which were potentially unsafe. Facebook profits from the sale of these goods and has potentially earned millions in revenue while allegedly doing little to tackle the problem.
National Trading Standards (NTS) investigators have called on Facebook to do more to prevent illegal sales, stating that it does not properly respond to requests to take down listings and often does not even remove the products after being given official warnings. There is also concern that Facebook has not nominated a point of contact for the authorities to liaise with about illegal activities and instead forces them to complete a form that is apparently routinely ignored. Mike Andrews of NTS said "they do make money from this and are not doing enough to take down these products… It's unsatisfactory."
Amazon and eBay were previously the most popular sites for the illegal trade in counterfeit products, but in recent years they seem to have responded to pressure from both regulators and companies. Investigators say the companies now closely monitor their sites for fake goods which may explain why counterfeiters are turning to Facebook to sell their fakes.
Counterfeit goods are big business; a report by the Organisation for Economic Co-operation and Development, released earlier this year, estimates that imports of fake goods into Britain are worth a staggering £9.4bn per year, or around 4% of the country's total imports. It's therefore no surprise that when pushed off of one site, counterfeit sellers look to find other sites that may be less hostile to their activities.
To avoid further regulatory intervention from NTS Facebook may need to show that it is dealing with the problem successfully, and take steps akin to those taken by Amazon and eBay to police this type of trade more effectively. Otherwise more serious action from NTS may result.
Legislation & Case Law Update
Class action lawsuit targets Google for unlawful personal data collection
A class action lawsuit in the UK could force Google to pay out compensation to more than 5 million people. Google is accused of unlawfully harvesting the personal data of users of the Apple iPhone safari browser by bypassing its security settings between June 2011 and February 2012. It is alleged that the company tracked "internet browsing history, which Google then used to sell targeted advertising", in breach of data protection laws.
The claim is being brought by a group called Google You Owe Us, headed by former Which? executive director Richard Lloyd. In an interview with the Guardian, Lloyd called the lawsuit "one of the biggest fights of my life". He went on to say "I believe that what Google did was simply against the law. Their actions have affected millions, and we’ll be asking the courts to remedy this major breach of trust."
In response to the allegations, a Google spokesperson said “This is not new. We have defended similar cases before. We don’t believe it has any merit and we will contest it.” The case won't be heard until sometime in 2018, but is sure to be one of the most significant of the year.
Investigatory Powers Act: UK Government consults on proposed response to the European Court of Justice ruling
On 30 November 2017, UK Home Office launched a consultation on its proposed update to the Investigatory Powers Act 2016 (commonly known as the "Snooper's Charter") in response to the 21 December 2016 European Court of Justice (ECJ) ruling in the case of Secretary of State for the Home Department v Tom Watson and others.
This case was initially brought by the now Brexit secretary, David Davis, and Labour's deputy leader, Tom Watson, to challenge the legality of a law that required telecoms companies to collect and retain phone, text and email correspondence data for all of their customers. The ECJ ruling clarified that EU law prohibits such bulk, indiscriminate collection and retention of personal confidential data. However, the ruling did state that targeted data retention legislation designed for fighting serious crime is permitted, provided that the data retention is limited to what is strictly necessary and there are defined conditions in which it can be accessed.
In light of this judgment, the Government has proposed amendments to the Investigatory Powers Act to update its data collection regime, while still allowing law enforcement and national security agencies to access communications data to investigate and prevent crime. Specifically, the amendments require requests for access to retained data to be independently authorised and that data retention and access must only be done in relation to serious crime.
The Government is particularly looking for feedback from telecommunications and postal operators, public authorities that have powers under the Investigatory Powers Act, as well as professional bodies and interest groups, but welcomes comments from the wider public. The consultation closes on 18 January 2018 and readers wishing to give feedback can do so by following the link below: