Regulating webcasting: An analysis of the Audiovisual Media Services Directive and the current broadcasting law in the UK

Webcasting is an emerging industry, which steadily gains significance as technology enables efficient delivery of video content via Internet. The regulation of webcasting is a topic worthy of debate: Regulating webcasting heavy-handedly may result in stifled innovation whereas not imposing any regulation carries the danger of an un-level playing field between webcasters and stringently regulated broadcasters. In the wake of the Audiovisual Media Services (AVMS) Directive's adoption, the debate has inevitably come to the attention of national regulators of EU Member States, and will remain on OFCOM's agenda until the Directive's implementation into UK law is completed. This article provides an analysis of both the AVMS Directive and the current UK broadcasting law as regards to its applicability to Internet-based services in order to identify UK's current standing prior to implementation; discusses the role of alternatives to state regulation (self- and co-regulation) in the implementation process and finally addresses the DCMS Public Consultation on the Implementation of AVMS Directive revealing the government's plan for the implementation.     

An academic perspective on the copyright reform

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.Our conclusions are:1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.     

对视听资料几个问题的探讨

视听资料是随着科学技术的发展和司法实践的需要而出现的一种新兴的证据形式,具有双重物质性、高度的科学性和便利迅捷性的特征。视听资料在制作主体、制作方式上具有一定程度的特殊性,对其进行探讨和研究,有利于推动视听资料作为诉讼证据使用的法律制度的进一步完善。     

视听资料的证据能力及采信规则

视听资料在我国是一种独立的证据种类 ,它对民事案件过程的再现具有其他证据种类无法比拟的特性。但是 ,视听资料本身又包含有易被伪造、篡改的先天不足 ,瑕疵视听资料 (包括非法视听资料 )的证据能力该如何判断 ?视听资料在司法实践中的采信规则该如何把握 ?等问题 ,都是我们要面对且亟待解决的课题。本文主要就视听资料的证据能力及采信规则进行一番探讨 ,以为今后建立视听资料的有关具体制度作一些理论上的准备     

Understanding the rule of prevalence in the NIS directive: C-ITS as a case study

The paper discusses the interpretation of the rule of prevalence of Article 1 (7) NIS Directive, which has not been the subject of any academic debate so far. Article 1 (7) NIS Directive organises the interface between the NIS Directive regime and other European Union sector-specific legislations imposing (cyber)security obligations, by laying down the conditions according to which such obligations would prevail over the NIS Directive regime. Based on the case study of the recent proposal from the European Commission to regulate Cooperative Intelligent Transport Systems (‘C-ITS’), the paper unravels a number of issues and unclarities. Recommendations are made with respect to the interpretation and application of the rule of prevalence of Article 1 (7) NIS Directive. In anticipation of a potential future C-ITS regulation and in the context of a possible upcoming revision of the NIS Directive, the paper also makes suggestions to ease the regulation of the interface between the NIS Directive and other (cyber-)security regulation, particularly in the field of C-ITS.     

Penal reform: a history of failure

The private investigation industry in the United Kingdom has been challenged by dubious work practices arising from the activities of a number of private investigators undertaking work for The News of the World. The allegations of private investigators acting as a conduit for improper behaviour are not new; in Australia this assessment was borne out in the 1992 New South Wales Independent Commission Against Corruption (ICAC) inquiry which found that investigators acted as the go-betweens in a ‘massive illicit trade’ in confidential information (Independent Commission Against Corruption (ICAC), 1992). The last study on private investigator's in Australia was undertaken by Prenzler (2001). In terms of public awareness the image of the private investigator remains a person of dubious character spying on domestic couples. Since the last study the private investigation industry has undergone significant changes in terms of licensing training, regulation and investigative services. These developments have not received much attention in the public media. This lack of media attention is somewhat surprising as developments pose challenges to the justice system.     

The Proposal for a Directive on the Patentability of Computer-implemented Inventions

The European Commission Proposal for a Directive on the Patentability of Computer-implemented Inventions is an important step towards harmonising and clarifying the patent protection available for such inventions in European Member States. This paper discusses the proposed Directive, its potential impact and some initial reactions from those in the software industry. It outlines the background to the Proposal, discussing briefly the exclusion of computer programs 'as such' from patent protection under the European Patent Convention (EPC). The paper observes that, in its current form, the proposed Directive will narrow the protection currently available to patentees and that some thought should be given to transitional provisions. It concludes that, whatever balance is struck as the Directive progresses to adoption, the Directive will have the benefit of providing a mechanism for aligning the approach of European Member States to patenting computer-implemented inventions. 'Educational initiatives' may, however, be required if European companies, in particular Small and Mediumsized Enterprises (SMEs), are, as intended by the Commission, to view the harmonization and greater transparency provided by the proposed Directive as an incentive to use patents to exploit their computer-implemented inventions.     

To block or not to block – European child porno law in question

The EU Commission has proposed a new Directive on combating sexual abuse, sexual exploitation of children and child pornography. The updated piece of legislation proposes to block access to child pornography websites. After months of negotiation, the Council, Parliament and Commission have agreed on a compromised text which generates more confusion and has been lambasted as meaningless. The compromised text is a result of powerful lobbying by Hollywood porno industry, Internet Service Providers and civil libertarians. The compromised text brings to highlight the tension between freedom of speech and protection of children.     

The Regulation of Trust and Company Services Providers * By Kimberley Roe and Gary Envis

Discussions in the European Parliament during the passing ofthe third EU Money Laundering Directive, stimulated the Societyof Trust and Estate Practitioners (STEP) to commission researchinto anti-money laundering and the regulation of trust and companyservice in a number of financial services jurisdictions. The Third Money Laundering Directive has been adopted now whichmakes this study     

The proposed data protection Regulation replacing Directive 95/46/EC: A sound system for the protection of individuals

The recent release by the European Commission of the first drafts for the amendment of the EU data protection regulatory framework is the culmination of a consulting and preparation process that lasted more than two years. At the same time, it opens up a law-making process that is intended to take at least as much time. The Commission has undertaken the herculean task to amend the whole EU data protection edifice, through the introduction of a General Data Protection Regulation, intended to replace the EU Data Protection Directive 95/46/EC, and a Police and Criminal Justice Data Protection Directive, intended to replace the Framework Decision 2008/977/JHA. This paper shall focus at the replacement of the EU Data Protection Directive by the draft General Data Protection Regulation. Due to the fact that the draft Regulation is a long (and ambitious) text, a selection has been made, with the aim of highlighting its treatment of basic data protection principles and elements, in order to identify merits and shortcomings for the general data protection purposes.     

Restriction of Hazardous Substances: On the Need for and the Limits of Comitology

This article demonstrates the need for and the limits of the so-called comitology procedure in the area of European waste legislation, using the example of Directive 2002/95/ EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (the RoHS Directive). The RoHS Directive prohibits the use of six hazardous substances in certain electrical and electronic equipment. The Annex to the RoHS Directive, which contains the exemptions from this prohibition, can be amended through the comitology procedure. This procedure is a widely used method in European Community law for the delegation of legislative power from the Council and the European Parliament to the executive branch, i.e. the European Commission. The authors conclude that the use of comitology is indispensable for highly technical issues for which the co-legislators are lacking the time, as well as the resources, to carry out the adaptation of the legislative acts. However, the Commission needs to handle comitology with care; otherwise it runs the risk that its decisions lack legitimacy.     

Lesbian Spanners: A Re-appraisal of UK Consensual Sadomasochism Laws

There continues to be legal invisibility of lesbians as sexual beings; in particular, for those lesbians who engage in BDSM. A cursory glance at work both within and outside of the academy gives the impression of increased social and legal acceptability for those who engage in BDSM. However, I suggest that this acceptance is illusory and that instead, gay men who engage in BDSM experience increased legal supervision and increased invisibility for lesbians. These issues are examined in the context of two seemingly disparate legal events. The first is the 30 year anniversary of Operation Spanner and the second is the introduction of the Audiovisual Media Services Regulations 2014. Amongst other things, the 2014 Regulations criminalise the portrayal of female ejaculation (but not male). Given this criminalisation of certain kinds of female sexual pleasure, the potentiality to significantly adversely impact upon lesbians is clear. 2017 will be the 30 year anniversary of Operation Spanner and the subsequent focus has been primarily upon gay male BDSM. I speculate as to the possible legal reaction(s) to a lesbian ‘spanner’ BDSM event. I speculate as to the legal reactions to an all-female BDSM dungeon.     

Banking on reform in 2010: is regulatory change ever enough and will the general election hold the answers for the financial services industry?

Over the past three years the financial service industry within the United Kingdom has undergone a major crisis. No part of the industry has gone untouched and even the regulators and the Government have come under fire for their part in promulgating the financial crisis, along with the financial service providers themselves. What has developed has been a plethora of policy documents issued and this has culminated in four major new legal updates for the financial services industry occurring during just one year. The Banking Act 2009, the Turner Review, the Walker Review, the White Paper on Reforming Financial Services and the Financial Services Bill 2009 have all increased the burden on financial services firms in light of the financial crisis sweeping not only the UK but the globe. This paper provides an oversight of these four important papers and pieces of legislation so as to shed light on what the new requirements for financial services firms are. Given the fast pace of the financial crisis, its respective regulation is also just as quick and as such it has been hard for practitioners and academics alike to keep pace with the evolving saga of the crisis. This paper therefore provides an overview of what happened and how the regulation has responded to the challenges it now faces.     

Data processing by police and criminal justice authorities in Europe – The influence of the Commission's draft on the national police laws and laws of criminal procedure

The proposal for a fundamental reform of the European data protection law, published by the EU Commission on 25 January 2012 is composed of two elements. Apart from a General Data Protection Regulation, the Commission proposes a second regulatory instrument, namely a Directive with regard to data processing by police and criminal justice authorities that shall supersede the Council Framework Decision 2008/977/JHA. This paper seeks to analyse the draft Directive in the context of the entire reform approach and scrutinizes a number of specific issues in regard to the scope, the requirements of data processing, notification duties and data transfer to third countries.     

Beyond European Labour Law? Reflections on the EU Racial Equality Directive

In June 2000, the Council adopted a directive forbidding discrimination on grounds of racial or ethnic origin in the areas of employment, social protection, education, goods and services, and housing. This is the first time the European Union has adopted binding legislation to combat racism. In this article, the Directive is placed within the context of European labour law, and its implications for the development of this area of law are considered. Specifically, it is proposed that a new category of European 'social law' is emerging, broader in scope than European 'labour law'. The Directive also reveals a new emphasis on effective enforcement of social law. Finally, this article considers the position of the Social Partners and non-governmental organisations in relation to the Directive. The prominence of NGOs is linked to wider trends in the wake of globalisation.     

Reconsidering the Premises of Labour Law: Prolegomena to an EU Regulation on the Protection of Employees' Personal Data

With its 1985 Directive on Data Protection, the European Union highlighted its commitment to the constitutionalisation of European law and, in particular, underlined its vision of the individual European as a rights-bearing individual; empowered through 'knowledge' and thus advantaged in communicative processes of political/social/legal bargaining. As such, the move to a data protection regime founded upon notions of individual empowerment, also mirrors a recent and fundamental re‐alignment in the guiding principles of regulative labour law, which has seen the paradigm of 'collective laissez‐faire' challenged, if not superseded, by a redirected emphasis upon the communicative empowerment of the individual employee rather than the representative function of employees' representatives. Accordingly, it is less than surprising that the field of labour law has seen increasing demands placed upon the Commission to fulfil its promise in the pre-amble to the 1985 Directive, and promulgate Regulations crafted to ensure data protection in line with the specific demands of individual societal sectors. This paper is a policy statement. It re-iterates the need for a Regulation on the protection of employees' data. Building on the comparative experience of the Member States, it outlines the nature, provisions and scope which such a regulation should entail so as to reflect, both the reality of the modern employment relationship, and a new normative vision of the workplace which aims to inject such relationships with a measure of communicative participation.     

Quo vadis information society? Notification of draft rules on e-services in the EU

From its inception the European legislator has adopted a mixed approach to the regulation of a novel and complex phenomenon of the Internet based commerce. The idea of harmonisation or approximation of laws has been accompanied by a parallel process of monitoring of draft laws pertaining to e-commerce, known as the notification procedure under 98/34/EC directive related to information society services. The aim of this paper is to analyse the notification principle in the light of the Notification Directive as well as the practice of states as evidenced by data gathered in a database of submitted drafts.     

When is personal data not “personal data” – The impact of Durant v. FSA

The Data Protection Act 1998 (the “Act”), which implements the EU Data Protection Directive (95/46/EC), applies to personal data and governs the activities of data controllers and data processors in relation to such data. In Michael John Durant v. Financial Services Authority (2003), the scope of the Act was restricted. In particular, key provisions, including “personal data” and “relevant filing system”, became the subject of narrow judicial interpretation when the Court of Appeal sought to limit the “unjustifiable burden and expense” imposed on data controllers in complying with the Act. Although questioned by commentators and subject to investigation by the European Commission, the significant shift in approach initiated by Durant has been endorsed in two subsequent cases: (1) David Paul Johnson v. The Medical Defence Union (2004) and (2) Terence William Smith v. Lloyds TSB Bank Plc (2005). This article considers the main principles of the Act, how the Information Commissioner, the courts and the European Commission have responded to Durant and what happens next.     

Trust in the proposed EU regulation on trust services?

A few months after ICRI's 20th anniversary conference the European Commission adopted on 4 June 2012 a draft regulation “on electronic identification and trusted services for electronic transactions in the internal market”. The proposed legal framework is intended to give legal effect and mutual recognition to trust services including enhancing current rules on e-signatures and providing a legal framework for electronic seals, time stamping, electronic document acceptability, electronic delivery and website authentication. Yet, this draft Regulation provokes many questions with regard to the implicit “trust” concept on which it is based. Starting from their experience in the EU FP7 uTRUSTit project (Usable Trust in the Internet of Things: www.utrustit.eu) and in other ICRI research projects, Jos Dumortier and Niels Vandezande have analyzed the proposed legislative text of the European Commission and wrote a few critical observations. Although obviously not presented at the conference in November 2011, it seemed worthwhile to add this contribution to its proceedings.