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In this edition of the newsletter we report on a flurry of recent decisions from the French courts including two online hosting cases; a case in which US copyright law was applied to image search; and a decision that may allow online companies to offer free delivery of books. We also discuss a recent Swedish decision, where an illegal file sharer was given a suspended prison sentence for his activities. In the UK, more proposals for changing consumer protection laws have been presented, as well as UK case law setting out guidance on when Norwich Pharmacal orders can be used. We consider the Belgian tax authority's attempts to encourage conversion of paper to electronic invoices and also guidance as to how data protection consent can be obtained online in Spain. We also include the first contribution from our new Finnish office, assessing the takeup of the IT public procurement terms and conditions introduced in October last year.
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EU |
French Supreme Court refers Google AdWords questions to European Court of Justice
Graham Smith, London
The French Cour de Cassation has recently referred to the European Court of Justice several questions concerning the use of Google AdWords. These questions arise out of litigation against Google and others brought by trade mark owners objecting to the reservation by Google customers of search keywords matching, to a greater or lesser degree, their registered trade marks.
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National IT and E-commerce Law
Belgian tax authority issues guidelines on electronic conversion of paper invoices
Patrick Michielsen, Brussels
Since 2004 Belgian companies have been able to invoice their customers electronically. However, many companies have considered the costs of adopting this type of invoicing prohibitive. Many companies also express concern about the legal uncertainties as to which conversion technology will be acceptable. To encourage more use of electronic invoicing, the Belgian tax authority has issued guidelines as to how to convert and archive paper invoices.
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Practical experience of the new Standard Terms and Conditions for IT public procurement in Finland
Kari-Matti Lehti, Helsinki
Eight months after the Finnish government issued new standard terms and conditions for IT procurements, we look at how popular these terms and conditions are. We consider how successfully these have replaced the old terms and conditions, and consider the next steps for more successful use of these terms.
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France |
French Supreme Court authorises online bookstores to offer free delivery to their customers
Sandrine Rambaud, Paris
Under a French law dating from 1981, online book stores have been unable to offer free delivery, as such offers have been considered to be bonuses which are illegal. However, a recent decision of the French Supreme Court has decided that free delivery is not a bonus and could therefore be permissible.
Paris Court applies US fair use law to Google Image Search
Jeanne Méhaud, Paris
In this case, the French Civil Court held that US law will apply in a copyright infringement case, even though the party suing was a French organisation. Consequently, the French court had to consider the concept of "fair use" under US law. It held that Google's Image search did not infringe according to the US fair use criteria.
Two judgments of the Paris Civil Court of First Instance establish that Dailymotion is a hosting service provider
Jeanne Méhaud, Paris
In the last edition of the newsletter we considered the recent developments in the law relating to providers of hosting services. In this article we consider two further cases, which provide useful guidance as to whether a User Generated Content platform is a hosting service provider as opposed to a publisher of information.
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Germany |
Frankfurt court holds that using a third party's trade mark as Google AdWords is not a violation of German law
Dr Fabian Niemann, Düsseldorf and Dr Ulrich Sachs, Munich
There is much dispute in the German higher regional courts as to whether using trade marks as Ad-Words breaches German law. The Higher Regional Court of Frankfurt has decided that as long as an advertisement is clearly separated from the search results, using a third party's trade mark as Google AdWords would not constitute an infringement of German law.
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New guidance on obtaining data protection consent through web pages
Rocio Serrano Conde, Madrid
The Spanish Data Protection Authority has issued guidance as to how consent to process personal data can be obtained through webpages. In the past companies have interpreted the requirement to get "unambiguous consent" strictly. In practice, many companies contacted individuals offline to establish their consent. However, the Spanish Data Protection Authority has now clarified that this is not required, and that companies can rely on implied consent. This article sets out some of the information that must be included on a website for implied consent to be valid.
Digital private copying levy in Spain
Miguel Angel Rodríguez, Madrid
In Spain, individuals can legally take copies of works protected by copyright, if intended for their private use. However, manufacturers located in Spain, importers and distributors have to pay a levy for certain equipment that could be used to copy this equipment. A new Spanish regulation has been introduced detailing the compensation that must be paid.
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Swedish Courts impose strictest penalty ever on illegal file sharing
Catrin Agerhäll and Jesper Lindfors, Stockholm
Traditionally, the penalty for illegal file sharing has been fines in Sweden. However, in the first case of its kind, a Swedish District Court has issued a more severe penalty; sentencing an illegal file sharer to a suspended prison sentence.
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BERR seeks comments on proposed changes to UK consumer law
Rhian Hill, London
The UK government has issued a request for comments on proposed changes to UK consumer law. Although there are a number of consumer protection measures already in place in the UK, the government wishes to simplify current legislation. Although the project is at an information gathering stage, these proposals could lead to far-reaching changes to UK consumer law.
Court of Appeal reviews procedure for ordering disclosure of website user identities
Barry Jennings, London
Norwich Pharmacal orders are commonly used in the UK to compel platforms such as ISPs and user generated content sites to identify a person who has committed a tort such as defamation. This recent decision of the Court of Appeal sets out guidance as to the information that must be provided and who should bear the costs of these orders.
The Criminal Justice and Immigration Act: changes to the law on data protection, blasphemy and pornography
Lawrence Schoeb and Rhian Hill, London
In May 2008, the Criminal Justice and Immigration Act came into force in the UK. This legislation changes a number of different areas of the law. In this article we focus on three areas of change; the changes to Data Protection rules, the abolition of blasphemy and the introduction of the offence of possessing extreme pornography.
Data retention in UK: the Communications Data Bill and the Interception Modernisation Programme
Rhian Hill, London
The UK Government plans to publish a draft Communications Data Bill in 2008. The Bill will transpose the provisions of the Data Retention Directive relating to internet communications data into UK law. At the same time it will provide more information about the government's interception modernisation programme.
STOP PRESS: the government has now issued a consultation paper on draft regulations to implement the Directive.
Major ISPs, music and film trade bodies sign up to agreement on illicit filesharing; UK Government issues consultation paper on regulatory approaches
Graham Smith, London
The UK government has issued a consultation paper on legislative options to address illicit peer to peer filesharing. Simultaneously a government-brokered deal has been announced between the recorded music industry, the film industry and six major ISPs. This will initiate a three month trial whereby the ISPs will send informative letters to users suspected of illegal file-sharing on the basis of IP address information provided by rights-owners.
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