Legal & Government Affairs Update Issue 5 - 2017
EU publishes draft report on its proposal to ban “backdoors” allowing the reading of encrypted messaging
On 9 June 2017, the European Parliament's Committee on Civil Liberties, Justice and Home Affairs published a draft report on the European Commission's proposal to strengthen the protection of privacy in the electronic communications sector.
First proposed by the European Commission in January this year, the amendments seek to ensure that there is sufficient protection in place against unauthorised access to user data.
In view of the significant technological developments since the adoption of the ePrivacy Directive in 2002, the proposals are particularly concerned with extending the scope of protection to interpersonal communications and Over-The-Top services such as Whatsapp, for example.
It is interesting that such measures are in stark contrast to the UK government's stance on access to secure communications. The UK Government appears to be determined to drop the "R" from RIPA, in favour of greater powers to access encrypted messaging. The EU appears to be heading in the opposite direction and is looking to reinforce principles of confidentiality, as enshrined in the ECHR and EU Charter.
The EU draft report could form the basis of a European Directive on the lawful hacking or otherwise of digitally encrypted communications. As Britain and the EU appear to be travelling in opposite directions on this issue I expect this to become a real area of contention during and after Brexit.
Case Law Updates
ECJ confirms online peer-to-peer sharing platforms can constitute a copyright-infringing “communication to the public”
Following the recent decision in the Filmspeler case (discussed in last months' update), the ECJ has once again made it clear that it will adopt a broad interpretation of the concept of "communication to the public" within the meaning of Article 3(1) of the Copyright Directive.
The Dutch case of Stichting Brein v Ziggo BV concerned the Pirate Bay, an online platform for peer-to-peer file sharing which indexed and categorised metadata relating to files. Stichting Brein, an anti-piracy association, brought proceedings against the two main internet service providers in the Netherlands, seeking that they block access to the Pirate Bay.
Turning to the ECJ, the Dutch Supreme Court asked whether there is a "communication to the public" by the operator of a website, if no protected works are available on that website but a system exists whereby metadata on protected works is indexed and categorised for users to download.
The ECJ ruled that an online sharing platform such as the Pirate Bay does fall within the concept of "communication to the public". This was based on the fact that the website played an essential role in making the copyrighted works available to users at any time in an indexed fashion.
Whilst the Pirate Bay has been blocked in the UK for some time, this ruling sends out a clear message to other such platforms operating both within the UK and across Europe.
European Commission consults on Database Directive
The European Commission has published an online public consultation, asking for views on how well the Database Directive (96/9/EC) is achieving its objectives. The consultation therefore asks a number of questions to asses this.
By way of background, the Database Directive created a new "sui generis" right for database producers to protect their investment of time, money and efforts (i.e. "substantial investment"), regardless of whether the database is in itself innovative.
In particular, the consultation seeks to find out whether the Directive is meeting the needs of producers, owners and users of databases. For instance, it asks whether producers are having any difficulty in proving "substantial investment" in their database. The consultation also aims to establish whether the Directive needs to be adjusted in any way.
The consultation will run until 30 August 2017 and more information can be found at: http://ec.europa.eu/info/consultations/public-consultation-database-directive-application-and-impact-0_en#about-this-consultation