Legal News

In this issue: New technologies Information technology Internet Media Advertising, marketing and sponsorship Reputation management Lex Talk®TMT: a Lexis®Nexis community Daily and weekly news alerts New and updated content Dates for your diary Trackers Useful information New technologies Regulators must weigh if image rights needed for AI policy Law360: After the general election, the next government will need to decide whether legal protection for an individual’s likeness is necessary to curb AI-driven deepfakes, while practitioners urge against hasty creation of a new category of intellectual property. See: Regulators must weigh if image rights needed for AI policy. Comment— Open AI, Meta, Anthropic could face civil liability in EU over their AI models MLex: Companies including Open AI, Meta Platforms and Anthropic could face civil liability for their AI models after the EU extended its product...

The PRS is already subject to a planned collective lawsuit over its licensing administration and royalty distribution practices. In a statement, PACE Rights Management, an advocacy group for music rights holders, revealed that a cohort of UK songwriters and composers, among them Robert Fripp of the rock band King Crimson, has begun legal proceedings against their collective management organisation, PRS. The objective is to 'revamp the execution of procedures and policies' considered 'detrimental to their interests' and to PRS members broadly alike......

With decarbonisation topping many agendas, businesses are understandably seeking to support the net-zero journey while also tuning in to consumer expectations around sustainability. Consequently, anyone approving advertising and marketing ( A& M) materials needs a firm grasp of the rules on environmental claims, and should take heed of examples from ASA rulings to date. In this article, we cover: the rules the ASA applies when assessing advertising complaints what we have learned from the ASA’s rulings so far what clients and their A& M teams need to know about making green claims What are the rules relating to environmental claims? The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing ( CAP Code) and the UK Code of Broadcast Advertising ( BCAP Code) set the standards the ASA applies when considering complaints and deciding whether to uphold them in its...

Prospect v Evans [2024] EWHC 1533 ( KB) What are the practical implications of this case? Since the decision in Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585 concluded that trade unions could not sue for libel, doubts persisted about whether it was rightly decided. This judgment clarifies that trade unions can, in fact, bring defamation proceedings. It remains the position that certain organisations, including local authorities and unincorporated bodies, are still unable to pursue a defamation action. What was the background? Prospect, a trade union, issued claims for defamation and malicious falsehood against Mr Andrew Evans ( E), who was a member at the time of publication but is now a former member. E sought a declaration that the court lacked jurisdiction to hear the defamation claim on the basis that the claimant union had no standing to sue in...

Proposals by MPs to introduce a new form of 'personality right' in UK law Plans by MPs to create a new ‘personality right’ in UK law intended to shield performers and public figures from AI-generated fake material may add little to what home-grown rules already provide at present, according to commentators. Hayley Brady, a partner at Herbert Smith Freehills LLP, observed that bolting image protections into the UK IP framework might not significantly extend coverage much beyond defamation and tort; yet, if it did, it would represent a marked shift towards protecting individuals. In early May 2024, a cross-party set of MPs and peers issued a report urging Parliament to enact a swathe of new laws designed to rein in artificial intelligence, prioritising the protection of creative workers from generative AI programmes. Among the recommendations was a call for government to establish a...

More than a year on from its original introduction in the House of Commons, the DMCCA 2024 secured Royal Assent on 24 May 2024. The Act ushers in sweeping updates to UK competition rules and consumer enforcement, together with a fresh regime to oversee designated Big Tech firms across the UK. Key takeaways the DMCCA 2024 has finished its passage through Parliament. Although additional rules and guidance are still required, the central reforms are anticipated to commence later this year following completion of that process overall the Act delivers the government’s digital markets strategy, featuring tailored conduct codes for specified digital businesses and a bespoke merger control system for designated companies and groups in the sector the legislation also makes major changes to the UK competition and consumer frameworks, including the following key elements and specific measures: ...

Drafting and deploying a fresh framework for overseeing artificial intelligence has largely consumed most of the regulatory energy EU technology legislators have wielded in recent years. Yet uncertainty persists over who bears responsibility when things go awry. The AI Liability Directive, intended to sit alongside the new EU AI Act, now confronts a precarious and highly uncertain outlook indeed. Meanwhile, as AI firms fixated on that file, a highly significant law for the sector slipped through with little public fanfare or attention: the Product Liability Directive. Though the updated statute lacks ‘ AI’ in its title, it decisively broadens the EU’s rigorous product liability framework to fully encompass software. The EU Product Liability Directive has existed since the 1980s and has long served as a cornerstone of the bloc’s internal market architecture. As intangible goods such as software...

In this issue: New technologies Internet Reputation management Advertising, marketing and sponsorship Daily and weekly news alerts New and updated content Dates for your diary Trackers Useful information New technologies Law360: Apple confirmed on 21 June 2024 that it will not introduce new artificial intelligence features in the EU this year, pointing to “regulatory uncertainties” tied to the EU’s Digital Markets Act and to potential security risks for Apple users arising from DMA compliance. See: Apple won’t offer AI tools in EU due to regulatory concerns. Internet MLex: Senior UK lawmakers from across the political spectrum say the online safety regulator’s work to implement the Online Safety Act 2023 falls short of the legislation’s provisions. In a joint letter to Ofcom CEO Melanie Dawes, they argue the draft child-safety code fails to enforce rules on underage use of online...

Taylor v Pathe Productions Ltd and others [2024] EWHC 1475 ( KB) What are the practical implications of this case? This ruling will interest anyone contemplating a claim about a drama drawn from real events. It stresses that the programme must be assessed as a whole and in context, and not dissected scene by scene, bearing in mind the ordinary viewer, who will watch it only once rather than pore over a transcript. Crucially, it clarifies that although some viewers may take particular meanings from the Film, this does not establish that the Film bears those meanings for defamation purposes. The court considers the reaction of the hypothetical reasonable viewer: not naïve, yet not unduly suspicious; able to read between the lines, but not avid for scandal; and not preferring a defamatory meaning where other non-defamatory readings are available, or quickly assuming the worst when...

The news lands about a fortnight after Apple showcased hundreds of fresh AI capabilities — among them Apple Intelligence, i Phone Mirroring and Share Play Screen Sharing — slated to appear on select Apple products outside the EU over the coming months. In a 21 June 2024 statement, Apple said it is 'highly motivated' to bring these AI technologies to every user everywhere, yet it does not expect to deploy them in the EU because of the Digital Markets Act, finalised in 2022 and carrying substantial penalties and heavy fines, as set out in the law. The DMA subjects services classed as key gateways through which businesses reach end users to safeguards designed to stop them gaining an undue edge, including interoperability obligations and a prohibition on giving their own products and services preferential treatment over rivals. Firms that breach the regime face fines of up to...

The Online Safety Act The Online Safety Act embodies a shared political resolve to protect children online. It secured unusually broad backing across parties and both Houses, as the priority of reining in the tech sector’s excesses outweighed any desire for point-scoring. The legislation that followed hands Ofcom substantial authority, with an explicit, early statement that its aim is to ensure children are safe by design. In that light, we must raise our concern that the draft Children’s Code falls short of that intent. In particular, the draft falls markedly short in three key areas: No enforcement against underage use, allowing millions under 13 to remain exposed to services and material those platforms themselves judge unsuitable. No measures to address known risks; livestreaming, prominently flagged in Ofcom’s own research, lacks any mitigation strategy......

In this issue: New technologies Fintech Data protection Reputation management Advertising, marketing and sponsorship Daily and weekly news alerts New and updated content Dates for your diary Trackers Useful information New technologies Are you a Provider or a Deployer under the EU AI Act? EU insight: Ashurst LLP partners, David Futter and Nicholas Quoy, joined by senior associates William Barrow and Aimi Gold, and associate Siân Deighan, unpack how the EU AI Act defines providers and deployers, and why that separation is significant. They also explore how, in practice, the line between provider and deployer can be indistinct, and what precautions organisations might adopt to steer clear of triggering the regime’s stricter obligations. Read News Analysis: Are you a Provider or a Deployer under the EU AI Act? Meta halts AI tech debut in EU after regulatory backlash Law360 reports that, on 14 June 2024, Meta Platforms Inc confirmed it was pausing plans to roll out its...

What does the EU AI Act say about this? Under the EU AI Act: A Provider is a person or body that creates (or has created on its behalf) an AI system or general purpose AI ( GPAI) model and is the first to place it on the EU market; or, for an AI system, directly supplies it under its own name or trade mark for initial use to a Deployer within the EU. A Deployer is a person or body that uses an AI system under its authority in the EU, except where the system is used for personal, non‑professional activity. In broad terms, you can view a Provider as the developer of an AI system, and a Deployer as a professional user of that system. A person or body is caught by the EU AI Act regardless of where they are...

After a famously gruelling final bout of political bargaining in December, the EU’s AI Act cleared its last hurdle, acclaimed as a flagship victory for a Union long eager to cement its role as the global leader on digital regulation. The text is slated for publication in the EU’s Official Journal next month, with entry into effect 20 days thereafter, in August 2024. Attention has therefore shifted firmly to implementation—particularly to the often opaque, highly specialised, somewhat arcane sphere of technical standards. Such standards are granular, detailed sets of technical specifications that help industry demonstrate technical conformity with legislation. They have long served to harmonise technical and safety requirements. Once largely unnoticed, standards have now taken on clear strategic significance. The landscape is also unsettled, as a recent EU court judgment could fundamentally reshape the very basis on which standards...

Drax Smart Generation Holdco Ltd v Scottish Power Retail Holdings Ltd; Drax Smart Generation Holdco Ltd v Scottish Power Retail Holdings Ltd [2024] EWCA Civ 477 What are the practical implications of this case? The Court of Appeal in Drax appears to have taken a commercially minded, substance‑over‑form stance when construing notification clauses. On one view, that marks a move away from the robust (and arguably overly stringent) approach seen in recent authorities, including the High Court’s decision in Drax and the Court of Appeal’s judgment in Decision Inc Holdings Proprietary Ltd v Garbett [2023] EWCA Civ 1284 ( Garbett). In Garbett, Newey LJ held that a similarly worded clause required the claimant to give an estimated amount for each individual breach, rather than a single global figure for the entire claim. Garbett can read as somewhat severe, and how far its reasoning coheres in...

Update to a recent blog post In an update to a recent blog post on its push to create AI for Europeans in ‘a transparent and responsible way’, Meta said it was disappointed by a request from the Irish Data Protection Commission (its lead EU privacy regulator) to postpone training its large language models on images, posts and other public content shared by adult users of Facebook and Instagram. The company, which owns both platforms, maintained it is highly confident its approach aligns with European laws and regulations, noting that since March 2024 it has kept data protection authorities across the EU informed and incorporated their feedback during development. Meta argued the move is a setback for European innovation and competition in AI, and will further delay delivering the benefits of AI to people in Europe. It also pointed out that using public data to train...

Tulip Trading Tulip Trading, the firm controlled by computer scientist Craig Wright, has withdrawn a concurrent legal action it had been pursuing against a cohort of bitcoin developers. Wright, an Australian who asserted he was Satoshi Nakamoto, bitcoin’s creator, was rebuffed by a searing May judgment handed down confirming he is not Satoshi. A formal notice discontinuing the proceedings was issued to both parties on 16 April 2024, per submissions further presented to the High Court on 14 June 2024 from Adam Baradon KC of Blackstone Chambers, acting for Tulip Trading and Craig Wright. In the Tulip Trading matter, Wright’s firm had brought a claim against 16 bitcoin network developers, alleging that it is unable to directly reach digital assets valued at £4.5bn because its private keys—the code governing control of those assets—were erased in a hack. Tulp resolved to......

In this issue: New technologies Internet Reputation management Data protection Advertising, marketing and sponsorship Information technology Lex Talk®TMT: a Lexis®Nexis community Daily and weekly news alerts New and updated content Dates for your diary Trackers Useful information New technologies ' Brussels Effect' of EU AI Act is uncertain, legal pros say Law360 reports that Big Law practitioners supporting cross-border clients on the EU AI Act highlight major doubts around ambiguous terminology in the 458-page law, how its hefty eight-figure penalties will be enforced, and whether it will shape a worldwide benchmark under the so-called ‘ Brussels effect’. See: ' Brussels Effect' of EU AI Act is uncertain, legal pros say. Internet Distance contract information obligations in case of conditional payments ( VT, UR v Conny Gmb H) In VT, UR v Conny Gmb H, Case C-400/22, it was determined that Article 8(2) of Directive 2011/83/ EU, the EU Consumer Rights Directive on formal requirements for distance contracts, obliges a trader to ensure that, when a...

Camacho v OCS Group UK Ltd [2024] EWHC 1164 ( KB) What are the practical implications of this case? The ruling emphasises the need for exact drafting in contracts and workplace policies and procedures. In this matter, neither the employment contract nor the grievance process made it express that staff agreed to any re-publication of defamatory statements arising during grievance investigations. The court likewise observed that the grievance procedure’s core function is to resolve complaints and does not necessarily, of itself, inaugurate disciplinary proceedings. Advisers should counsel employers with care and precision to ensure their contracts and policies plainly and transparently define the reach and effects of these internal procedures where potentially defamatory allegations may surface or be repeated. The court also confirmed that the principles in Friend v Civil Aviation Authority [1998] IRLR 253 have only a limited application to the consent defence in...

In recent months, solicitors have been guiding business clients on evaluating the risks posed by their artificial intelligence ( AI) systems and on taking immediate steps to establish internal governance frameworks, so that organisations keep pace with compliance under the far-reaching new law, approved by the Council of the EU in May 2024 and phased in across the next 36 months. Gibson Dunn & Crutcher LLP partner Joel Harrison, co-chair of the firm's privacy, cybersecurity and data innovation practice group, told Law360 that numerous companies are working out internally where responsibility for AI governance should sit within current corporate arrangements, a task complicated by lingering ambiguities in the statute. He said many organisations are wrestling with the placement of AI governance and how the new AI rules intersect with their data privacy and security practices, as they determine how these...