Internet legal developments to look out for in 2016

A preview of some of the UK internet legal developments that we can expect in 2016. Some topics are perennial (see 2015 and 2014), some are new.

EU copyright reform In December 2015 the European Commission published, as part of its Digital Single Market initiative, a proposal for a Regulation on cross-border portability of online content services. In parallel it published a ‘political preview’ of proposals to amend copyright law, for which more detailed legislative proposals and policy initiatives will be worked up during 2016. This process will incorporate the pending review of the Satellite and Cable Broadcasting Directive, which has ventilated the possibility of extending the country of origin copyright rule for TV and radio programmes from satellite to the internet. Other areas of likely interest include copyright exceptions, enforcement (probably against a broader variety of intermediaries) and news aggregation services.

Online consumer contracts In another strand of the Digital Single Market initiative the Commission in December 2015 published proposals for two Directives on online consumer contracts, one applicable to digital content and the other to goods. Member States would be prohibited from enacting either higher or lower levels of consumer protection than specified in the Directives.

Copyright and linking Three more linking cases are on their way to the CJEU, all from Dutch courts: C-160/15 GS Media (a reference from the Dutch Supreme Court concerning a link to an infringing copy of a photograph), C-527/15 Filmspeler (a site blocking case referred by the Central Netherlands District Court; the target site is alleged to have provided a downloadable media player with an add-on containing refreshable lists of links to infringing material; cf Popcorn Time) and C-610/15 Pirate Bay (a site blocking case with linking aspects, referred by the Dutch Supreme Court).

Copyright and temporary copies The C-527/15 Filmspeler reference asks the CJEU whether the transient copies that a user makes when viewing an infringing movie can be excepted from infringement under the EU Copyright Directive’s temporary copies exception. The questions specifically address lawful use and the three step test (which were not covered in the Meltwater/PRCA ‘right to browse’ case).

Site blocking orders The Dutch Supreme Court has referred a site blocking question to the CJEU in C-610/15 Pirate Bay. Meanwhile in the UK the ISPs’ appeal to the Court of Appeal in Cartier v BSkyB (three judgments here, here and here) is pending. This was the first UK trade mark site blocking case and is the first site blocking case since Newzbin 2 to be contested by the ISPs.

Intermediary liability The mere conduit and injunction provisions of the Electronic Commerce Directive are the subject of a German reference to the CJEU in Case 484/14 McFadden. It concerns injunctions against providers of open wi-fi networks to prevent copyright infringement by users. The European Commission has been conducting a public survey on the “regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy” including the intermediary liability provisions of the Electronic Commerce Directive. The survey closes on 6 January 2016. There is crossover with the Commission Communication "Towards a modern, more European copyright framework" issued on 9 December 2015.

The Investigatory Powers Bill Following the Anderson, ISC and RUSI reviews the draft Investigatory Powers Bill has been published and is undergoing formal pre-legislative scrutiny by a Joint Parliamentary Committee. The Committee is expected to report by 11 February 2016. The House of Commons Science and Technology Committee, the Joint Parliamentary Committee on Human Rights and the Intelligence and Security Committee of Parliament are also considering the draft Bill. The Bill itself is expected to be introduced in Parliament in March 2016.

Questions arising out of David Davis and Tom Watson MPs’ legal challenge to the data retention provisions of DRIPA have been referred to the CJEU by the Court of Appeal. A reference from the Swedish courts (C-203/15 Tele2 Sverige) is also pending.

Interception and surveillance complaints to the European Court of Human Rights  include a case taken by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz and one by the Bureau of Investigative Journalism. Amnesty International, Liberty, Privacy International and others have lodged a complaint following the decision of the Investigatory Powers Tribunal on bulk interception and receipt of US PRISM and UPSTREAM interception product. 

Investigatory Powers Tribunal challenges brought by Privacy International and seven ISPs around the world to equipment interference and by Privacy International to use of bulk personal datasets are pending. The latter includes a challenge to the use of national security directions under S.94 Telecommunications Act 1984. 

Mindmap of legal challenges (interactive PDF with links to key documents):

AVMS Directive Review The European Commission is reviewing the Audiovisual Media Services Directive. This raises once again the appropriateness (or not) of extending TV-like regulation to the internet.

EIDAS Regulation The replacement for the Electronic Signatures Directive comes into force on 1 July 2016. As well as electronic signatures it covers ‘electronic identification schemes’ and ‘electronic trust services’.

Data Protection Political agreement on the new General Data Protection Regulation was reached at the end of 2015. The Regulation should be formally ratified early in 2016 and come into force in 2018. Google’s appeal in Vidal-Hall is pending before the UK Supreme Court. Permission to appeal was granted on all points other than whether the claim was a tort.

Net neutrality Revisions to EU telecoms legislation will impose net neutrality rules from 30 April 2016.

[Updated 3 January 2016 to include net neutrality.]

Latest score in the jurisdiction game: Internet 0, EU Court of Justice 2

The CJEU in Pez Hejduk (22 January 2015) has plumped for mere accessibility as the threshold for online copyright jurisdiction under Article 5(3) of the EU Jurisdiction Regulation.

Mere accessibility is problematic for the internet. Exposing a website to the jurisdiction (or a fortiori the laws) of any country from which it can be accessed is, David Post has argued, not a reasonable outcome. (Some, epitomised by the Gutnick-inspired English defamation cases, may consider it quite reasonable since anyone posting to the internet knows the worldwide reach of the medium).  From a broader perspective mere accessibility chills cross-border freedom of expression, encourages geo-blocking of websites and impedes the free flow of information across borders.  Pez Hejduk is another bad day for the internet.

The CJEU headed down this road in October 2013 with Pinckney, a copyright infringement case against a German CD pressing company. The litigation was brought in France on the basis that the CDs could be purchased in France from a UK website unconnected with the German company. That was said to amount to damage in France.

For a tort such as copyright infringement Article 5(3) allows the plaintiff to sue in the place of the damage.  Article 5(3) is an exception to the primary rule that proceedings have to be brought in an EU defendant’s home country. Article 5(3) is the kind of effects-based rule that, unless it is kept within bounds, has the potential to create jurisdictional overreach. 

That potential is magnified with the inherently cross-border nature of the internet.

In Pinckney the court agreed with the plaintiff that damage was shown by the ability to purchase the CDs in France. It was irrelevant what kind of copyright infringement (reproduction? distribution? making available to the public?) was alleged against the German pressing company. Copyright infringement was to be treated as a general concept. Harm could apparently be relied upon however remote might be the causal relationship between the actual infringement alleged (reproduction in Germany?) and the harm relied upon (availability of CDs in France via an unconnected UK website).

So like the smile on the Cheshire Cat, jurisdictional harm seemed to float free, decoupled from any specific territorial infringement alleged against the defendant. That was not a promising start for keeping damage-based jurisdiction on the internet within sensible bounds.

Pez Hedjuk concerned photographs published on a German .de website. The copyright owner sued in Austria.  Again the precise basis of the infringement allegations is not entirely clear from the CJEU judgment.  It seems likely that the claim was for making available to the public in Austria from the German website, thus infringing Austrian copyright.

In Pez Hejduk causation was less tenuous than in Pinckney.  The Court identified a specific causal event as giving rise to the alleged damage: “the activation of the process for the technical display of the photographs on that website”. Even so the CJEU could have gone on to find that, for the purpose of jurisdiction under Article 5(3), a website operator does not cause damage in Member States that it has not targeted.  But it did not do so.

The CJEU held that the mere fact that the .de website was accessible in Austria was sufficient to establish damage under Article 5(3), where (as would inevitably be the case) the photographs were protected by copyright in Austria as well as in Germany. There was no basis in Article 5(3) for limiting jurisdiction to cases where the German site had targeted Austria.

Article 5(3) is supposed to be a strictly limited special derogation from the general rule under the Regulation that a plaintiff must sue in the defendant’s Member State. But for the internet mere accessibility comes close to turning the exception into the rule. Unless the site or content is geo-blocked a plaintiff can, based on mere accessibility of the site, sue in parallel in any number of Member States (albeit limited in each case to damage caused within the Member State in which it sues).

The twin prongs of mere accessibility and Pinckney’s broad causation brush are a recipe for jurisdictional overreach.

The Pinckneyapproach is odd when one considers that a plaintiff relying on Article 5(3) can sue only for damage caused within that Member State. How can the existence or likelihood of relevant damage (a jurisdictional issue) be evaluated if no attention is paid to the causal link between the specific infringement alleged and the harm relied upon?

The unwillingness of the Court in both Pinckney and Pez Hejduk (in each case rejecting the recommendations of the Advocate General) to align Article 5(3) more closely with the scope of the substantive right by way of targeting is difficult to understand, given that it has already gone down the path of interpreting Article 5(3) differently for different rights:

“the meaning of [Article 5(3)] may vary according to the nature of the right allegedly infringed…” (para 29).

eDate/Martinez(defamation/privacy), Wintersteiger (trade mark) and Pinckney (copyright) are all examples of this.  The Court may be making an implicit distinction between the nature of the right (which it allows can affect the interpretation of Article 5(3)) and its substance (which cannot). Whether the two are separable is open to question. Can the nature of a right be characterised without regard to its substance? What is the basis for distinguishing between relevant and irrelevant aspects of a right?

The Court in Pez Hejdukalso relied on the lack of mention of targeting in Article 5(3):

“It is clear from [Pinckney] that, unlike Article 15(1)(c) … Article 5(3) does not require, in particular, that the activity concerned be ‘directed to’ the Member State in which the court seised is situated ...”.

It is true that unlike Article 15(1)(c), Article 5(3) makes no mention of directing activities. But nor does it mention mere accessibility; nature of the right versus substance; centre of interests of the plaintiff (edate/Martinez); limitation of damage to that caused in the Member State; country of registration of the trade mark (Wintersteiger); or any of the other glosses that the CJEU has placed on Article 5(3).

Perhaps the most persuasive reason relied upon by the Court in Pez Hejduk is that the Member State court best placed to exercise jurisdiction is the one that will apply its own law:

“The courts of other Member States in principle retain jurisdiction, in the light of Article 5(3) … and the principle of territoriality, to rule on the damage to copyright or rights related to copyright caused in their respective Member States, given that they are best placed, first, to ascertain whether those rights guaranteed by the Member State concerned have in fact been infringed and, secondly, to determine the nature of the damage caused …”.

However where the claim is copyright infringement by the presence of content on a website the most likely basis of a cross border claim will be making available to the public. As a matter of substantive EU copyright law (applying Sportradar to copyright) there can be no infringement and so no damage caused by a tort if the site is not targeted to that Member State. That will be the same throughout the EU. In those circumstances it is hard to see what practical purpose is served by allowing mere accessibility rather than targeting to be the jurisdictional threshold.

Internet legal developments to look out for in 2015

[Updated 28 May 2015]

Some EU and UK internet legal developments to look out for in 2015 (last year’s list here). (And see here for Cyberlaw Memes and Themes for 2015.)

●        EU copyright reform The last European Commission closed its Public Consultation on EU copyright rules on 5 February 2014. The new Commission has announced that EU copyright modernisation will be a priority for 2015, as part of a Digital Single Market package. [The Commission published its Digital Single Market Strategy on 6 May 2015.] 

●        Copyright Private Copying Exception On 1 October 2014 the UK introduced its new format shifting (‘personal copying for private use’) copyright exception. At the end of November three UK music industry bodies (The Musicians’ Union, The British Academy of Songwriters, Composers and Authors and UK Music) announcedthat they were mounting a judicial review court challenge to the legislation.   Their case is that the exception should have provided fair compensation to copyright holders and consequently does not comply with the EU Copyright Directive.

●        Online copyright jurisdiction – Pez Hejduk (C-279/13) is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement under Article 5(3) of the Brussels Jurisdiction Regulation.  The Advocate General has proposed that the Court should lay down a different rule from any of those adopted in previous cases (eDate/Martinez, Wintersteiger and Pinckney): jurisdiction limited to the courts of place of the event causing the damage, with a possible exception for the place of damage where the site was clearly and incontestably targeted towards one or more other Member States.  Judgment is due on 22 January 2015. [The Court rejected the Advocate General's Opinion and adopted a mere accessibility criterion. Bad news for the internet.]

●        Copyright and linking C More Entertainment (C-279/13) is the last of a trilogy of copyright linking cases to come before the CJEU (the others were Svensson and Bestwater). A date for judgment is not yet available. [It appears that the referring court has now withdrawn the questions about linking.  The CJEU gave judgment on a separate issue on 26 March 2015. However another linking case before the Dutch Supreme Court (Geenstijl) was referred to the CJEU on 7 April 2015.] 

●        Site blocking orders 2014 saw the most significant UK site blocking case since Newzbin2, Cartier v BSkyB. It was the first UK trade mark site blocking case, the first since Newzbin2 to be contested by the ISPs and the first in which a third party (the Open Rights Group) intervened.  Numerous points were decided in three judgments and an injunction was granted. We can expect further site blocking applications in 2015. [A case brought by Cartier against Nominet, seeking an order that Nominet remove from its domain name registry (de-tag and lock) various domain names that resolve to websites alleged to infringe Cartier's trade mark, has been discontinued.] 

●        Intermediary liability The pending Delfi referenceto the European Court of Human Rights Grand Chamber concerns an online newspaper’s defamation liability for readers’ unmoderated comments on editorial articles. Various NGOs and media organisations have weighed in with interventions.  [Judgment will be given on 16 June 2015.] 

The mere conduit and injunction provisions of the ECommerce Directive are the subject of a German reference to the CJEU in Case 484/14 McFadden. It concerns injunctions against providers of open wi-fi networks to prevent copyright infringement by users.

●        RIPA, DRIPA and the Counter-Terrorism and Security Bill.  Clause 17  [now Clause 21] of the C-TS Bill currently going through the UK Parliament will extend mandatory data retention to certain IP address resolution data, subject to the same 31 December 2016 sunset clause as DRIPA.  A legal challenge to S.1 of DRIPA by MPs David Davis and Tom Watson is under way. The High Court on 8 December 2014 granted permission to bring the judicial review application. Various current reviews of RIPA, DRIPA and other investigatory powers legislation will report during 2015. The reviews are conducted by: Independent Reviewer of Terrorism Legislation, RUSI, Intelligence and Security Committee of Parliament, and the Interception of Communications Commissioner (police acquisition of communications data to identify journalistic sources).  [Section 21 of the Counter-Terrorism and Security Act is now law. The ISC and IOCC reports have been published. The IRTL report has been submitted to the Prime Minister and is due to be published shortly. A new Investigatory Powers Bill has been announced in the Queen's Speech.]

Interception and surveillance complaints to the European Court of Human Rights include a case taken by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz and one by the Bureau of Investigative Journalism. See mindmap of legal challenges. Also look out for any further developments arising out of the Investigatory Powers Tribunal decision in December that, in the light of disclosures of interception practice made by the government in the proceedings, future use of Section 8(4) warrants and PRISM intelligence sharing would be ‘in accordance with the law’ under Article 8 of the European Convention on Human Rights. Legality prior to the government disclosures has still to be determined. [On 6 February 2015 the IPT adjudged that prior to the disclosures the PRISM sharing regime breached Article 8.]

●        Social media offences The Criminal Justice and Courts Bill currently proceeding through Parliament will create a new ‘revenge porn’ offence.  It will also increase the maximum penalty under the Malicious Communications Act 1988 from six months to two years imprisonment. [Sections 32 to 35 of the Criminal Justice and Courts Act 2015 became law in April 2015.]

●        Consumer Rights Act The Consumer Rights Bill currently before Parliament will, as part of a wholesale reform of consumer goods and services law, introduce a separate category of consumer contracts for supply of digital content, to which a self-standing set of implied conditions will apply. [Chapter 3 of the Consumer Rights Act 2015 is now in force.]

●        Data protection A new General Data Protection Regulation (perhaps). The pending appeal in Vidal-Hall v Google. The CJEU reference in Case C-362/14 Schrems v Irish Data Protection Commissioner. [Google's appeal in Vidal-Hall was dismissed on 27 March 2015.]

Svensson - free to link or link at your risk?

[Updated 5 July 2014]
Last week's CJEU Svensson v Retriever decision has established some important points about the legality of linking under EU copyright law:

1. A clickable direct link to a copyright work made freely available on the internet with the authority of the copyright holder does not infringe. 
2. It makes no difference to that if a user clicking on the link is given the impression that the work is on the linking site.
3. However, it appears that a clickable link will (unless saved by any applicable copyright exceptions) infringe if the copyright holder has not itself authorised the work to be made freely available on the internet (see further discussion below; [the UK Intellectual Property Office has adopted this interpretation in its Copyright Notice on Digital Images, Photographs and the Internet.]).
4. If the work is initially made available on the internet with restrictions so that only the site’s subscribers can access it, then a link that circumvents those restrictions will infringe (again subject to any applicable exceptions and further discussion below).
5. The same is true where the work is no longer available on the site on which it was initially communicated, or where it was initially freely available and subsequently restricted, while being accessible on another site without the copyright holder’s authorisation.

It seems to follow, although this is not very clear in the judgment, that a link to an infringing copy does not infringe if, and for so long as, a copy of the same work is freely available somewhere on the internet with the authority of the copyright holder. (“How could I possibly know that?” you ask.  More on that theme below.)  But this would not exempt links to infringing copies of works that are not legitimately available on the internet at all, or which have only been legitimately made available on the internet under restrictions.

In practical terms the Court has made a valiant attempt to balance the competing considerations of protecting rightsholders’ content without restricting reasonable user behaviour.  However among the commentators (see here, here, here and here - hat tip to these for some of the questions raised below) some are already suggesting that the CJEU’s reasoning – giving a very wide meaning to an act of communication, then reining back the scope according to whether the link makes the work available to a ‘new public’ compared with that contemplated by the copyright holder – may store up trouble for the future.

Open questions

Before delving into that, let’s mention some areas that Svensson may have left open for future decisions (such as, possibly, the pending references in C More Entertainment and Bestwater).

1.  The Court draws a distinction between freely available content and, on the other hand, restricted content where a link circumvents the restrictions. Are those intended to be the only two possible categories, so that if a copyright work is not ‘restricted’ it is necessarily ‘freely available’? Or are they two ends of a spectrum, the middle of which has yet to be explored? What, for instance, would be the position if the copyright holder has authorised a licensee to make the content freely available on the internet, but the licensee makes it available only on a restricted basis?
2. Does ‘restricted’ refer only to technical restrictions (and how sophisticated?), or does it also encompass licence or contractual restrictions?
3. The judgment refers only to clickable links.  What about other varieties of link, or analogous technologies? The logic of the judgment would seem to apply to inline links where, rather than awaiting the user’s click, the linked-to content is served up automatically to the user when the web page is requested.
4. The judgment refers to links ‘to’ copyright works, affording ‘direct’ access to those works. Does the link have to be to the actual work itself in order to make it available, or does a link to a page containing the work suffice? So applying the Svensson reasoning a clickable link to the URL of a news page makes available the HTML text of that page. Does it also make available a photograph which loads automatically as part of the news page, but which is nevertheless a separate copyright work with its own URL capable of being separately linked to? What about a playable video within the page, or a PDF downloadable from that page? Each of those is a separate copyright work requiring a further click by the user to access it.  Might they be regarded as indirectly, rather than directly, accessible from a link to the news page containing them?
5. Does the reservation for subsequently removed or restricted works apply only to new links created after the initially freely available work was withdrawn or restricted, or do existing links to unauthorised copies automatically become infringing?
6.  What is the position where initially the work was lawfully made freely available on the internet under an exception to copyright, such as fair dealing? Is that different from when it was done with the authorisation of the copyright holder?  On the face of it the Svensson version of the 'new public' test would not of itself legitimise linking in the former situation.

It is also important to understand that the Court's decision only concerns whether a link can amount to 'communication to the public' for the purposes of harmonised EU copyright law. It does not deal with other ways in which linking might infringe, for instance by authorising infringement or joint liability for someone else's infringement.  Nor does it say anything about non-copyright issues such as passing off or unfair competition.

Authorising the initial internet communication

The most significant aspect of the Svensson judgment is, oddly, not mentioned in the operative part of the decision (in which the Court provides its definitive answer to the question posed by the referring national court). The operative part says:

“…the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public' … .”

Taken at its face, that could suggest that a link to any freely available work does not infringe, regardless of whether the copyright holder initially authorised the work to be made freely available on the internet. That would broadly legitimise most links. But if that is right it is difficult to understand the numerous references in the judgment to whether the copyright holders authorised the initial communication to the public on the internet, and the potential audience contemplated when they did so.  It is likely that the operative part should instead be understood to mean:

“…the provision on a website of clickable links to works freely available on another website, in circumstances where the copyright holder has authorised such works to be made freely available at [that]/ [an] internet location, does not constitute an ‘act of communication to the public' … .”

The alternatives ‘that’/‘an’ reflect the possible uncertainty about the effect of the judgment on links to unauthorised copies where the copyright holder has authorised the work to be freely available at some other location on the internet. 

The curious case of the freelance journalist

The significance of the copyright holder’s authorisation of the initial internet communication is well illustrated by the facts of Svensson itself. According to the CJEU judgment the Swedish proceedings were between four journalists, Mr Svensson, Mr Sjögren, Ms Sahlman and Ms Gadd, who sued Retriever Sverige AB for compensation resulting from Retriever’s inclusion on its website of clickable links to press articles in which the journalists held the copyright.

The Court said:

“[The journalists] wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Postenwebsite. Retriever Sverige operates a website that provides its clients, according to their needs, with lists of clickable Internet links to articles published by other websites. It is common ground between the parties that those articles were freely accessible on the Göteborgs-Posten newspaper site. …”

The journalists claimed that by linking to the articles on the newspaper website Retriever was making their articles available to its clients without their consent. When the CJEU discussed ‘new public’ it said:

“a communication, such as that at issue in the [Swedish] proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public ….

… it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.” (emphasis added)

The assumption of the Court in coming to this conclusion on the facts appears to be that the four copyright holder journalists all authorised the newspaper to make the articles freely available on the newspaper website - the site on which the initial communication on the internet was made and to which Retriever linked.  

But what if the journalists had authorised publication only in the print newspaper and not on the newspaper website? It then seems inescapable that since the initial communication on the internet would not have been authorised by the journalists, a public link to the newspaper website article would be caught, even though the article was freely available on the newspaper website and not subject to any restriction.

Curiously, that scenario may have some relevance to the Svensson case itself. In his judgment in Paramount Home Entertainment v BSkyB, Mr Justice Arnold summarised the facts of Svenssonbased on English translations of the Swedish judgments provided by Paramount. He said this:

“14.The claimants were four journalists who between them had written 13 articles published by the Göteborgs-Posten newspaper. Three of the journalists were employed by the newspaper, while one was freelance. All of the articles had all been published not only in print, but also online on the newspaper's website. In the case of one of the articles, which was written by the freelance author, the online publication by the newspaper was not licensed by the author.” (emphasis added)

If that is right, then for one of the 13 articles the copyright holding journalist who wrote it did not authorise initial communication to the public on the internet. For that article (assuming that the journalist had not authorised freely available publication elsewhere on the internet) the CJEU’s conclusion that the link did not amount to a communication to a new public would be thrown into doubt (unless it is wrong to read the 'authorisation of initial communication' qualification into the operative part, as discussed above).

Does Svensson pass the 'reasonable internet user' test?

Whatever the precise facts of Svensson may be, this example illustrates a fundamental difficulty with the CJEU's judgment, assuming that the 'authorisation of initial communication' reading is correct.  Ordinary internet users are put in the position of publicly linking at their risk to any freely available content on the internet, however reputable the site may be, because they cannot be certain and have no practicable way of finding out whether the site owns copyright in its material, or has properly licensed it in, or whether a third party copyright owner has authorised the same material to be made freely available elsewhere on the internet.

A good test when evaluating copyright judgments that directly affect the general public, especially internet users, is this: 

1. Can I explain to a user with confidence exactly what rules s/he has to follow?
2. Will a reasonable internet user think those rules are sensible?
3. In any given situation can the user readily ascertain whether what s/he wants to do will infringe?

Svensson just about passes the first question, probably fails the second and certainly fails the third.

The third point is especially significant since, at least in the UK, civil liability for primary copyright infringement is strict. You can infringe by accident, in situations where you are blameless. It is no excuse that you did everything you could to avoid infringement, or that you had no reason to think you were infringing.

That has always been the case in the UK for primary infringement (reproduction, communication to the public and some other types of restricted act).  It is a hangover from the hard copy days when copyright was almost entirely a commercial matter and hardly impinged on end users. It was reasonable to expect commercial publishers and broadcasters to clear rights first. Even then dealers, such as commercial distributors, were subject only to secondary infringement: they did not infringe copyright unless they had reason to believe they were handling an infringing copy.

Now, thanks to the long reach of digital copyright (which Svensson's interpretation of 'making available' has arguably extended even further) primary copyright infringement impinges directly on end users.

End users are in no position to clear rights before, for instance, posting links to public discussion forums or on social media platforms. We make decisions to send public tweets, including links, in a matter of seconds.  If we are retweeting, we may not even visit the location to which the original tweet links.  If we are expected to embark on some investigation to satisfy ourselves that our link won’t infringe, for instance because someone’s unlicensed copyright might be lurking behind a reputable site – worse still if there is no practicable investigation that we can make - then we have a regime that risks chilling freedom of expression. 

It is no answer to suggest that if the links are harmless no-one will ever complain.  That would repeat the UK format-shifting episode, where the gap between copyright principle and reality has been so great as to bring copyright into disrepute.  Nor is it an answer to say that you don’t have to tweet links.  That is exactly the kind of chilling effect that copyright law should avoid.

Of course copyright law does contain some built-in freedom of expression accommodation.  Many linking tweets may find refuge in, say, the UK fair dealing exceptions for criticism, review and news reporting.  However these contain their own technicalities and limitations. For instance the UK news reporting exception does not apply to photographs. And the exceptions vary from one country to another, even within the EU. That is problematic for a user given the inherently cross-border nature of the internet. Is a tweeter expected to consider which countries her tweet may be thought to be targeting before tweeting a link?

Whatever happened to Article 10?

Again on the point of chilling freedom of expression, the CJEU judgment contains a surprising omission. Notwithstanding that it has adopted an interpretation of ‘making available’ of such breadth that it must engage Article 10 ECHR/Article 11 EU Charter, the Court conducted no proportionality assessment. In fact there is no mention of Article 10/11 at all; this after SABAM v Scarlet and Donald Ashby, in which the CJEU and European Court of Human Rights respectively have held that copyright has to be balanced against other fundamental rights.

What could the CJEU have done differently?

The CJEU could have avoided these problems had it adopted a narrower view of “making available”. It could have restricted it to material intervention in the actual or putative transmission, so that but for the intervention no transmission would take place.  In most previous CJEU communication to the public cases the defendant was an actual or putative transmitter. In Airfield the defendant was not, but supplied encryption keys and decoder cards without which the transmission could not take place. Thus there was a material intervention (in effect a participation) in the transmission. 

In its first communication to the public case, Rafael Hoteles, the CJEU treated the ‘without which’ transmission requirement as forming part of the test for an ‘act of communication to the public’.   In Airfieldthe ‘without which’ test became mixed up with ‘new public’.  Now, in Svensson, the process is complete. ‘Act of communication’ has been completely decoupled from transmission.  ‘New public’ is everything.  One has to wonder whether this is a wise progression.

[Thanks to @twobirds colleagues for looking over a draft, especially Jerker and Benoit for insightful comments. However they bear no responsibility for this final version.]

[Updated 10.50 am 19 February 2014 to clarify Open Question 6 and cross refer to Open Questions in initial paragraph.] [Further tweaking 12.45pm 20 February 2014 and 5 July 2014.]

Cyberlaw memes and themes for 2014

[Updated as at 20 December 2014]
Following my hard law roundup of legislation and pending court cases in the EU/UK pipeline, here are some rather more amorphous cyberlaw themes to look out for in 2014. This is the realm of soft law, inter-government negotiations, NGOs, lobbyists, op-ed writers, bloggers and policy wonks. I have also thrown in some concrete items that were too speculative to qualify for the hard law survey.

Nudging and bludgeoning You could describe the UK government’s campaign to persuade ISPs to introduce default content filters as a variety of nudging, the idea being that a householder subscriber has to make an active selection to disable the filter. Aside from the inevitable coarseness of the filters, if this is nudging it is nudging with sharp elbows. Like many nudging ideas, changing the behavioural environment of the end user requires the co-operation, voluntary or enforced, of an intermediary. Call it what you like – private-public partnership, co-regulation, nudging, bludgeoning, backdoor armtwisting – we can expect more of it in 2014. [Here is David Cameron claiming that internet companies will Agree to do More to Filter Extremist Material Online, though the details of the supposed agreement seem a mite fuzzy.]

Magic wand politics Mention of filtering leads on to magic wand politics: the collective delusion of the governing class that the Good Fairy of the Internet can wave her magic wand and cure whatever perceived internet ill is troubling the PM and his advisers today. Steel yourselves for more in 2014. [The Intelligence and Security Committee Report on the Lee Rigby murder. If only Facebook had waved its magic wand.]

Understanding the internet Ill-considered political interventions provoke wailing from geeky quarters that politicians don’t understand the internet. But is the problem a lack of technical knowledge, or is it a deeper failure to embrace the liberal values that we like to think are embodied in the internet? If they did understand the consequences of their actions how many politicians would care? Given what politicians have shown themselves already capable of, tremble for the day (unlikely to be in 2014) when they do understand the internet. [Clause 17 of the Counter Terrorism and Security Bill is about so-called IP address resolution. MPs can hardly be blamed for not understanding it when every government explanation adds to the confusion.]

The Internet Wild West It is impossible to debate behaviour on the internet without somebody painting a picture of the internet as a lawless Wild West and casting themselves in the role of Sheriff come to bring order to the chaos. No matter that the internet is beset with more laws than the offline world and that many of those impose stricter rules (often inappropriately so) than offline. It is depressingly safe to predict that the Wild West meme will continue to flourish in 2014. [Perhaps less of the Wild West than expected (examples here and here), but we did get 'the beautiful dream of the internet as a totally ungoverned space' from Sir Iain Lobban, shortly followed by another Wild West in the Parliament Intelligence and Security Committee here (11:28). Then almost at the end of the year we had this corker from President Obama (with "rules of the road" thrown in for good measure).] 

Doctorow’s Warning Two years ago Cory Doctorow identified "the coming war on general purpose computing". He worried about the future lobbyists who would ask:



"Can't you just make us a general-purpose computer that runs all the programs, except the ones that scare and anger us? Can't you just make us an Internet that transmits any message over any protocol between any two points, unless it upsets us?" The answer (see Magic Wand Politics) is ‘No’, but serious damage can be done in trying and failing. Doctorow again:
"Reality asserts itself. Like the nursery rhyme lady who swallows a spider to catch a fly, and has to swallow a bird to catch the spider, and a cat to catch the bird, so must these regulations, which have broad general appeal but are disastrous in their implementation. Each regulation begets a new one, aimed at shoring up its own failures." With each new round of regulation aimed at preventing wrongdoing, the greater the temptation to rectify the failure of the previous round by throwing a wider regulatory net over non-culpable actors engaged in general purpose activities. Site blocking injunctions against online intermediaries is an obvious example. Co-option of payment processors, advertising networks, domain name registrars and search engines is another, as would be action against VPN. 

These are not the only examples. Traditionally liability for wrongdoing has applied to doing, participating in and procuring wrongful acts, but stopped short of facilitating and enabling them. One reason for drawing that dividing line is that acts of facilitation and enablement are by their nature general purpose. As such, damnifying them always carries a high risk of damage to legitimate activity, whether present or future, known or unknown. There will in 2014 be continued pressure to extend all sorts of online liability and obligations to facilitation and enablement. [The amendment to the RIPA definition of 'telecommunications service' by the Data Retention and Investigatory Powers Act 2014 (DRIPA) is a classic example.  It now includes "facilitating" the creation, management or storage of communications transmitted, or that may be transmitted, by means of a telecommunication system.]  

At a deeper level, the concern about co-opting law-abiders, facilitators and enablers represents the difference between a society in which each is free to set and pursue his or her own goals and allocate their own resources accordingly, and one in which anyone can be conscripted into an online army and commanded to crusade against the government’s designated enemy of the day.

Doctorow’s Warning is as relevant at the start of 2014 as it was two years ago.

Technological neutrality. Everyone loves technological neutrality and will appeal to it in support of whatever legal or policy position they are advocating. Laws should obviously be technologically neutral, shouldn’t they? Not necessarily. In fact resort to technological neutrality is dangerous without understanding (a) which version of technological neutrality you are invoking (b) when it is safe or appropriate to deploy it and (c) when other principles (e.g. fundamental human rights) should outweigh it. These were my slides on the topic at the Society of Legal Scholars conference in September. A full paper is in the works. [Now published.]

The rise of PIPCU Launched on 12 September 2013 with £2.6m of taxpayer funding over two years from the Intellectual Property Office and a special focus on offences committed online, the activities of the Police Intellectual Property Crime Unit, operated by the City of London Police, have perhaps so far attracted most attention in the pages of Torrentfreak.  With emphasis on preventative and deterrent action, including requesting suspensions from domain name registrars around the world, its activities will inevitably attract wider scrutiny. The Open Rights Group has requested a meeting with PIPCU to discuss its processes. Definitely one to watch in 2014. [PIPCU in the news already 11 Jan 2014.][As at 11 June 2014 PIPCU has suspended 2,359 .co.uk domains and achieved 19 website payment provision suspensions (IP Crime Highlight Report). It has also launched an unpublished Infringing Websites List to be shared with advertisers in an attempt to disrupt advertising revenue.][On 23 October 2014 the IP Minister announced that PIPCU would receive another £3 million government funding to take it through to 2017.  Meanwhile PIPCU has been putting replacement advertisements on infringing websites, including one making the at first sight curious claim that "Illegal Downloading is a Crime". Unauthorised downloading is of course a civil copyright infringement, but is not in itself a criminal offence under the UK Copyright Act. This is how PIPCU has explained it:

@cyberleagle Thanks Graham. Downloading falls within s.45 of the Serious Crime Act 2007 if it encourages s.107 CDPA 1988 offences.
— City Police PIPCU (@CityPolicePIPCU) August 15, 2014

 So there you have it.]

Copyright wars The Piscean fishes swimming in opposite directions have nothing on the copyright wars. Historically there was pressure from rightsowner interests for stronger copyright, provoking largely reactive and patchy opposition. Now we can identify not just resistance to stronger copyright, but a coalescing agenda for digital copyright reform. In the UK the Hargreaves recommendations are going through. Ireland and Australia have completed significant reviews of copyright, with the Australian Law Reform Commission having recommended the adoption of a flexible fair use copyright exception and the Irish review a more limited version. Some EU MEPs have started to formulate an agenda for copyright reform. The courts have started to show interest in aligning digital copyright to its offline equivalent. The copyright wars will continue to be fought out in arenas such as TTIP. [The new European Commission has included copyright modernisation in its Work Programme for 2015. Expect a bloodbath.]

Blocking injunctions In my hard law piece I mentioned the pending CJEU reference in Constantin Films v UPC. In parallel there will almost certainly be more UK applications for blocking injunctions under S97A. In practice the court normally makes a determination on the basis of evidence and submissions from rightsowners alone - a less than ideal situation. Will 2014 be the year in which some public minded body tries to intervene in an application on a quasi-amicus basis? [Yes. The Open Rights Group obtained permission to intervene with written submissions in Cartier's application for a trade mark blocking injunction. The court adopted some of ORG's suggestions for further safeguards in the blocking order.] 

Privacy In a prediction at the end of 2012 for BNA I said that 2013 might be the year in which the privacy industry remembered that the state is more threatening than a cookie. And so it proved. But will we keep our eye on the ball? Will we let EU politicians turn PRISM, TEMPORA and Snowden into an excuse for an information trade war with the USA? Will they get away with suggesting that EU data protection laws have historically protected against surveillance by EU national governments? Or will we convince ourselves that it’s all the fault of US corporations for collecting data (as if Galileo should never have built a telescope)? We will find out in 2014. [No. Yes. Yes. Yes.]

See also: Internet Legal Developments to Look Out For in 2014

Internet legal developments to look out for in 2014 (Updated)

[Updated with progress as at 20 December 2014 and further updated 7 October 2015]

And see: Cyberlaw Memes and Themes for 2014

2013 has been a busy year for cyberlaw. But what does 2014 hold? Here are some developments in the UK and EU pipeline.

1.  Defamation Act 2013. This legislation comes into force in a few days’ time, on Wednesday 1 January 2014.   

• It provides website operators with complete defamation immunity for identifiable third party posts and qualified protection for anonymous posts.
• As a result of the 2009 European Court of Human Rights judgment in the Times Newspapers internet archive case we will now have a single publication rule which puts an end to rolling limitation periods for online defamation. 
• The new ‘booksellers defence’ bars defamation actions against secondary publishers unless it is not reasonably practicable to proceed against the author, editor (if any) or commercial publisher (if any). This will include online intermediaries.  
• There will now be a bar on proceedings against non-European defendants, unless of all places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action. While this is framed as a general restriction on forum-shopping, it will be especially relevant to actions founded on the mere accessibility in England and Wales of a foreign internet publication. 

The Act does not apply to Northern Ireland, nor do the provisions discussed apply to Scotland.

2. New copyright exceptions. Following the Hargreaves Report new and amended copyright exceptions are slated to come into force by 6 April 2014. These will cover archive & preservation, quotations, educational use, disabled access, private study, text and data analytics, parody and private copying (format shifting). Draft statutory instruments for all these were published for technical review during 2013. Separately, new provisions for orphan works, extended collective licensing schemes and regulation of collecting societies are in the pipeline. And don’t forget the European Commission’s Public Consultation on its review of EU copyright rules, which closes on 5 February 2014. [The copyright exceptions were intended (per the Minister in the IP Bill 2nd Reading Debate) to be laid before Parliament in February 2014 for debate under affirmative resolution procedure. Draft regulations were in fact laid before Parliament and published, together with a response to the technical review, explanatory notes, guidance and other supporting documents, on 27 March 2014 with a view to coming into force on 1 June 2014. All except the parody and private copying exceptions did so. These two exceptions were deferred following questions from the Joint Committee on Statutory Instruments. The drafts were then reissued for debate in Parliament, passed and come into force on 1 October 2014. Following a challenge by judicial review the private copying exception regulation has since been quashed.] [The European Commission Consultation response date was extended until 5 March 2014 and is now closed. 11,117 submissions were received.]

3. Blocking orders.  Constantin Films v UPC is pending in the CJEU. This is a case on copyright blocking orders. The Advocate General issued his Opinion on 26 November 2013. In the continuing absence of an English version, here are the Court’s Press Release and my summary of the Opinion. A judgment during 2014 is likely. [The CJEU issued its judgment on 27 March 2014. Comments here.]

4. Copyright and linking. Three cases pending before the CJEU are about whether various types of linking can infringe the copyright communication to the public right. These are Svensson, C More Entertainment and BestWater. BestWater has been stayed pending Svensson, which appears to be heading towards judgment, probably during 2014, without the benefit of an Advocate General’s Opinion. Svensson has provoked two bodies, the European Copyright Society and the International Literary and Artistic Association (ALAI), to issue conflicting opinions on how linking issues should be decided. Also look out for Football Dataco v Stan James in the UK Supreme Court, a database right case under appeal on the question of joint liability. [Svensson judgment issued on 13 February 2014. Discussion here.]

5. Online copyright jurisdiction. Pez Hejduk is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement.  Most likely it will regard Pinckney as having already answered the Pez Hejduk questions. Also look out for Blomqvist, a CJEU case which has online aspects concerning the territoriality of the copyright distribution right and of trade marks. [Blomqvist judgment issued on 6 February 2014. Summary here. AG Opinion in Pez Hejduk issued on 11 September 2014 (not yet in English). CJEU judgment in Pez Hejduk issued on 22 January 2015. Opted for mere accessibility as the threshold for jurisdiction over online copyright infringement.]

6. Intermediary liability. Papasavvas, another pending CJEU reference, asks questions about the scope of the Electronic Commerce Directive provisions on internal market and intermediary liability. The internal market questions look very similar to those already answered in eDate/Martinez. Some aspects of the intermediary liability questions may provide the CJEU with an opportunity to comment on the Delfi decision of the European Court of Human Rights. [17 Feb 2014 ECHR Grand Chamber decides to refer Delfi case (i.e. hear an appeal). Hearing on 9 July according to AdVox. Papasavvas judgment issued 11 September 2014. No surprises. Confirms previous CJEU caselaw, including application of eDate/Martinez to defamation. No mention of Delfi.]

7. Copyright and temporary copies The pending NLA v PRCA reference to the CJEU should determine whether a user’s web browsing is an activity that requires the permission of the copyright owner. The UK Supreme Court thought not, but decided that the question required an EU-wide answer from the CJEU. [CJEU judgment issued 5 June 2014. Browsing permission not required.]

8. PRISM, TEMPORA, Snowden. Watch out for the legal challenges launched by various public interest groups following the Snowden revelations. These include two applications (by Liberty and Privacy International) to the Investigatory Powers Tribunal and a case taken (by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz) direct to the European Court of Human Rights. [In the latter the ECtHR requested the UK Government to provide written observations on admissibility and merits by 2 May 2014. The complaint has been stayed pending the outcome of the IPT cases (hearings July 2014). The IPT found that the challenged activities (PRISM intelligence sharing and the hypothetical use of RIPA S.8(4) warrants for TEMPORA were, in the light of disclosures of practices and policies made by the government during the proceedings, 'in accordance with the law' going forwards. The position prior to the disclosures would require further consideration. In a further judgment the IPT found that PRISM intelligence receipt prior to the disclosures made in the proceedings contravened Articles 8 and 10 ECHR. In the meantime the CJEU on 8 April 2014 invalidated the Data Retention Directive. As a result the UK government substantially relegislated the Data Retention Regulations 2009 in the Data Retention and Regulatory Powers Act (DRIPA). On 8 December 2014 MPs David Davis and Tom Watson (represented by Liberty) were granted permission to proceed with a judicial review of S.1 DRIPA, with the Open Rights Group and Privacy International intervening. The High Court disapplied S.1 on 17 July 2015, suspended until 31 March 2016. My mindmap of the UK interception legal landscape as at 7 October 2015:]

9. The saga of the Digital Economy Act 2010. The May 2013 Online Infringement of Copyright Roundtable minutes state that letters are not contemplated to start going out until ‘the latter half of 2015’. None of the necessary cost sharing statutory instruments has yet been laid before Parliament, a Treasury approval mechanism seems to be in play, and there is a General Election between now and then.  It could cost participating rightsowners collectively up to £10 million (to March 2015) in OFCOM cost sharing charges to take it forward. [Voluntary letters scheme 'Creative Content UK' announced 19 July 2014.]

See also: Cyberlaw Memes and Themes for 2014