Legal News

Blake and Seymour v Fox [2024] EWHC 146 ( KB) What are the practical implications of the case? The judgment provides a thorough examination of the elements needed to prove serious harm and the supporting evidence, especially where a prominent defendant, already associated with controversy and criticism, seeks to show that the particular allegations complained of caused reputational damage. It further highlights that ‘indiscriminately lobbed’ claims can land on ‘highly combustible material’; the consequences in the real world matter even if allegations are promptly removed, and it is often the ‘insidious creation of a “bad odour”, together with the difficulty of establishing a negative, that does the most reputational harm’. Practitioners should also advise clients pursuing vindication through specific findings of fact that the court will not stray beyond what is strictly necessary. In this instance, because the defendant failed to prove serious harm on his...

Per court records and filings, the video-sharing platform has initiated proceedings against the Commission at the EU’s lower-tier General Court, as records show. A company spokesperson confirmed the action concerns the fee it is obliged to pay under the EU DSA. ‘ We dispute the fee and are appealing on a number of grounds, including the reliance on defective third-party estimates of our monthly active user figures used to determine the overall amount,’ a Tik Tok spokesperson said......

Sam Woods, chief executive of the Prudential Regulation Authority, the Bank of England’s regulatory arm, told the Treasury Committee that its remit has a significant notable gap not seen in the EU’s regulatory framework. The single power parliament has not handed to us is the ability to impose fines, he explained during the committee’s scrutiny of the PRA’s activities. That sets us apart from the EU method. Woods added that he expects the authorities conferred on the PRA by the Financial Services and Markets Act 2023, which obtained Royal Assent in June 2023, to prove effective once translated into formal rules, though he stressed this remains currently an emerging area. Firms expected to fall within the PRA’s forthcoming oversight of so-called critical......

Today, the UK government stated that talks between AI makers and copyright owners had not produced an agreed voluntary code of conduct to address copyright concerns, meaning ministerial action will certainly be needed. In releasing its reply to the public consultation on the AI white paper, the government noted that ‘regrettably, it is now apparent the working group will be unable to reach agreement’ on a path ahead within the structure defined by the IPO......

In this issue: New technologies Internet Media Data protection Reputation management Telecommunications Advertising, marketing and sponsorship 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 DSIT publishes AI Regulation White Paper consultation response The Department for Science, Innovation and Technology ( DSIT) has released the government’s reply to the Artificial Intelligence ( AI) Regulation White Paper consultation, setting out plans for a balanced, pro-innovation regime for AI oversight as outlined in the White Paper. DSIT indicates that government is enabling more agile AI regulation and will equip regulators with the expertise and tools to manage AI’s risks and opportunities. It has also confirmed investment in AI safety and advancement, with over £100m committed to unlock new AI advances and...

Boonyaem v Persons Unknown Category ( A) and others [2023] EWHC 3180 ( Comm) What are the practical implications of the case? There are a number of concrete takeaways for advisers and their clients, spanning interim relief, serving proceedings on unidentified parties, digital assets, and following the trail of those assets. The claimant asked the court to continue both a proprietary freezing order and a non‑proprietary worldwide freezing order; the court acceded in relation to the second and third defendants, but declined to do so against Persons Unknown Category ( A). The rationale was that orders aimed at defendants who are both unknown and unascertained cannot be enforced. That difficulty does not arise where defendants are unknown yet capable of being sufficiently identified. The ruling also reinforces the view that, in appropriate situations, cryptoassets may constitute “property” under the law of England and Wales. The...

Kopiosto ry v Telia Finland Oyj Case C-201/22 What are the practical implications of this case? The Court of Justice’s judgment materially shapes how CMOs pursue copyright enforcement across the EU. It makes clear that a CMO’s power to start infringement actions for rights holders is not an autonomous concept under EU law; instead, each Member State determines the position. A CMO’s ability will turn on: whether the Member State recognises the CMO as having a direct interest in the case; and whether the CMO enjoys standing either expressly under that State’s national law or under its general procedural rules. As a result, where some rights holders are covered by several CMOs operating in separate jurisdictions, the scope for those CMOs to bring proceedings on their behalf may differ from one country to another, depending on the forum and on whether the two conditions above are met. What was the...

From 17 February 2024, providers of intermediary services—such as cloud and file‑sharing services, search engines, social networks and online marketplaces—come within scope of the EU Digital Services Act ( EU DSA). These organisations must meet a suite of duties, including putting in place notice‑and‑action procedures, observing detailed requirements for terms and conditions, and issuing transparency reports on content moderation, among other obligations and measures required under the framework. For further details on the EU DSA, please refer to our earlier blog posts here and here for context and background. The Commission, under powers granted by the EU DSA, may adopt delegated and implementing acts covering aspects of how the regime is implemented and enforced in this context. In 2023, it adopted one delegated act on supervisory fees payable by very large online platforms ( VLOPs) and very large online search engines (...

Seven. One Entertainment Group Gmb H v Corint Media Gmb H, Case C-260/22 What are the practical implications of this case? The Court of Justice’s ruling delivers further practical guidance, offering helpful clarification on the latitude and limits of what EU Member States may and may not do when implementing and transposing EU-wide directives in question within their domestic legal frameworks. This ruling emerged in the setting of a broadcaster’s entitlement to seek equitable remuneration for private, purely non-commercial copying of its protected broadcasts in Member States that recognise an applicable private copying exception. What was the background? Seven. One, a German broadcasting and production company, commenced proceedings against Corint Media, a collective management organisation, following Corint Media’s refusal to accede to Seven. One’s request to be paid compensation from the blank media levy that Corint Media had collected pursuant to their management contract as between the...

Gov Data Ltd v Indeed UK Operations Ltd [2024] EWHC 39 ( Comm) What are the practical implications of this case? This decision arose from Gov Data Ltd’s request for a Norwich Pharmacal order compelling Indeed UK Operations Ltd to reveal identifying information about four anonymous reviewers who had posted comments on Indeed’s platform, so that Gov Data could consider claims for defamation and malicious falsehood. It confirms that any Norwich Pharmacal application must be properly particularised. Moreover, even if the gateway criteria are satisfied—there is an arguable wrong, the order is required, and the respondent both facilitated the alleged misconduct and can supply the data—the court will only grant relief where, considering relevant factors, it is strictly necessary and proportionate. It also highlights the rigorous scrutiny such applications attract. The court was troubled by how Gov Data and two...

Assimilated Regulation ( EU) 2015/2120 Assimilated Regulation ( EU) 2015/2120 initially applied in the UK by virtue of the nation’s EU membership. Once IP completion day had passed, the instrument became part of retained EU law. Owing to the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023), from the close of 2023 it has instead sat within the corpus now described as assimilated law. That category is handled somewhat differently from retained EU law: the supremacy principle that once attached to the latter no longer bites on assimilated law, and does not apply to it. Nevertheless, despite this alteration in status and treatment, Assimilated Regulation ( EU) 2015/2120 still provides the cornerstone of the UK’s net neutrality regime and, as such, remains a principal reference point for Ofcom’s guidance. What were the key findings in Ofcom’s review of net...

October 2022 saw the UK government introduce a new security framework via T( S) A 2021. This has since been bolstered by regulations that set out the precise security measures providers must undertake, together with a Code of Practice for telecoms providers that provides a good practice guide for effective telecoms security. The telecoms security rules present particular challenges for providers of public electronic communications networks or services (public telecoms providers), bringing extra compliance obligations, markedly increased risk and a series of key questions to address. Comprehensive due diligence should be carried out to identify the appropriate next steps to achieve compliance. Six key considerations Just because your business is not categorised as a Tier 1, 2 or 3 provider does not mean the rules will not affect you. Although suppliers to public telecoms providers are not directly regulated under the telecoms security rules, they will still be...

In this issue: New technologies Internet Media Advertising, marketing and sponsorship Data protection Reputation management Lex Talk®TMT: a Lexis®Nexis community Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& A Useful information New technologies How to implement contract safeguards ahead of upcoming European AI laws Frauke Tepe and Lucas Mayr of Osborne Clarke examine the expected EU AI Act and its implications for agreements covering the development and licensing of AI systems. The arrival of the EU AI Act is now assured. After a political compromise in trilogue on 8 December 2023, adoption before the close of the legislative term and the European elections in June 2024 appears probable. Although the precise wording is still pending, drafts from the European Commission and the Council of the EU,...

Mir v Hussain and others [2024] EWHC 56 ( KB) What are the practical implications of this case? The ruling underscores the stringent threshold defendants must meet when pursuing summary judgment on the basis that they are not publishers of defamatory material. Save in the most clear-cut scenarios, summary judgment will be out of reach. Whether a defendant bears responsibility for publication is intensely fact-dependent. The setting and context of dissemination will usually be known to the defendant (and not the claimant), leaving the claimant to seek an inference of participatory publication from circumstantial proof. Where the claimant can adduce enough material to justify such an inference, shutting the case out without a full trial will seldom be proper. The ruling further confirms that a claimant may plead liability by participation in publication, while in the alternative relying upon agency...

Easygroup Ltd v Easy Live ( Services) Ltd and others [2023] EWCA Civ 1508 What are the practical implications of this case? As Lord Justice Arnold noted, instances where misrepresentation is proven yet no damage is shown are scarce as hens’ teeth, so there are correspondingly few reasoned rulings on damage in passing off. This decision supplies much-needed direction. Three recognised heads of damage can complete the tort: lost revenue harm to repute damage to an existing or prospective licensing/endorsement business The third head is especially pertinent in unusual situations—like here—where trade mark infringement under section 10(2) of the Trade Marks Act 1994 ( TMA 1994) fails because the goods and services are dissimilar, yet goodwill and misrepresentation are made out. Unlike TMA 1994, s 10(2), passing off may not impose a threshold similarity of goods or services; however, proof of damage remains a...

Montres Breguet SA v Samsung Electronics Co Ltd [2023] EWCA Civ 1478 What are the practical implications of this case? The Court of Appeal recorded that Samsung placed weight on a shield to financial remedies found in the Electronic Commerce ( EC Directive) Regulations 2002 (the E‑ Commerce Regulations), SI 2002/2013, reg 19, which transposes Directive 2000/31/ EC (the EU E‑ Commerce Directive). Samsung characterised this as both its most compelling ground of appeal and its most consequential one, in the specific circumstances. Regulation 19 of the E‑ Commerce Regulations affords hosting providers a defence in respect of liability for material posted on their platforms, so long as they lack knowledge of the unlawful character of that material and, once alerted, act promptly to remove it or to block access. Samsung’s central contention was that, because the watch‑face applications were created and...

On 12 January 2024, the United Kingdom formally put its name to the 2019 Hague Convention on the recognition and enforcement of foreign judgments in civil and commercial matters (the Hague Judgments Convention). This News Analysis examines what the Hague Judgments Convention sets out, and why the UK’s decision to join it is especially significant for Banking & Finance practitioners in particular. What is the Hague Judgments Convention? The Hague Judgments Convention establishes a shared framework of rules for recognising and enforcing civil and commercial court decisions originating from States that become parties to it (the Contracting States). The EU and Ukraine are, at present, Contracting States to the Hague Judgments Convention; however, a range of other states have signed, among them the US and, now, the UK. The Tracker— Hague Judgments Convention offers details on whether a jurisdiction has signed the...

In this issue: New technologies Internet Data protection Media Advertising, marketing and sponsorship 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 Generative AI framework for HM Government published The Cabinet Office, working with the Central Digital and Data Office, has released guidance for civil servants and teams across government organisations on the safe and secure use of generative artificial intelligence. The HM Government framework lays out ten principles for safe, responsible and effective adoption, covering ethical and responsible practice, keeping tools secure, and ensuring meaningful human control where appropriate. It also sets out practical measures for building generative AI solutions, highlighting that they must be developed with legal requirements, ethics, data protection and privacy, security and governance firmly in view. See: LNB News 18/01/2024 59. NCSC publishes report on impact of AI on cyber threat The National Cyber Security Centre has published a report...

The anticipated AI Act is in draft but already shaping contracts concerning the development and licensing of AI systems. It is now beyond doubt: the European Union’s artificial intelligence law, the EU AI Act, is on its way. Following news of a political deal in trilogue talks on 8 December 2023, the Act is expected to be adopted before the close of the current legislative term and the European elections in June 2024. While the precise provisions have not yet been finalised, drafts from the European Commission and the Council, together with details of the compromise shared by parliamentary figures, have surfaced—and the need to act is already pressing. The EU’s aim is to roll out fresh regulatory benchmarks for deploying AI systems, carefully balancing the benefits and risks of using AI across different fields. Alongside the broader EU AI Act, a...

After three days of negotiations, the text was updated to address delicate matters, including rules for AI foundation models—the technology behind popular chatbot Chat GPT—remote facial recognition, and any prohibited uses such as racial profiling. The AI Act largely sets duties for AI systems according to the degree of risk they pose to citizens’ health, safety and fundamental rights. Experts from EU governments will review the draft within the Working Party on Telecommunications and Information Society, a technical arm of the Council of the EU. Assuming no major alterations emerge, national ambassadors are expected to formally endorse the deal on 2 February 2024. The European Parliament committees overseeing the AI Act will then vote on the draft, before final approval by the parliament’s plenary in April. Foundation models The EU executive’s original 2021 AI Act proposal adopted a risk-based model, ensuring that...