Legal challenges of the current digital times

Catalin Suliman 25.09.2015

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• Market is developing faster than the regulations and there is a constant need for guidance

• The competition law had an impact on the IT and digital world: 80s – Intel case, 90s Microsoft case; 2k- Google case

• Current focus is on platforms and online market

- Platforms are considered any electronic environment that is mandatory for new entrants – Internet explorer case

- Online sales hubs – future of commerce – Commission identified that around 80 % of online sales are local.

• Tendency to increase the extra territorial character

• Tendency to increase in the future

Hot EU topics on digital worldEU Commission perspective

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Hot EU topics on digital world

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What the Commission said

• Google has abused its dominant position by: i) favoring its own comparison shopping product in its search results; ii) not applying rank penalties to its own services; iii) imposing exclusivity agreements on publishers and restrictions on advertisers.

What Google said

• Google delivered more than 20 billion free clicks to aggregators over the last decade, with free traffic increasing by 227% (and total traffic increasing even more).

• Showing ads based on structured data provided by merchants demonstrably improves ad quality and makes it easier for consumers to find what they’re looking for.

• Showing ads sourced and ranked by other companies within its advertising space would harm the quality and relevance of the search results. Such an obligation is justified only where a company has a duty to supply its own rivals.

Hot EU topics on digital worldGoogle antitrust case (I)

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Proposed commitments

• the services of three rivals to be displayed in a clear, visible and comparable to the way in which Google displays its own services.

• to give content providers an extensive opt-out and to remove exclusivity requirements in its agreements with publishers and restrictions on the ability for search advertising campaigns to be run on competing search advertising platforms

Status

• No agreement was reached in respect to commitments;

• The Commission issued a Statement of Objects and Google presented its arguments to such;

• Case is pending and potentially end up with a sanctioning decision

Hot EU topics on digital worldGoogle antitrust case (II)

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Hot EU topics on digital world

(c) www.theguardian.com

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Google is a "controller" which "processes" personal data under EU law

What Google said

• Google does not process personal data because it processes all information available on the internet without effecting a selection; Google is not a ‘controller’ since it has no knowledge of the data and does not exercise control over the data.

What the Court of Justice said

• storing data and making it available to its users in search lists is ‘processing’.

• The search operator is a ‘controller’ because he determines the purposes and means of its activity. Control over the publishing of data is not relevant;

• publishers are not included as they carry activities for journalistic purposes.

Hot EU topics on digital worldGoogle data protection case – Spain – right to be forgotten (I)

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Google’s search activities are subject to Spanish data protection law because Google Spain sells search advertising for Google

What Google said

• The processing is carried out exclusively by Google Inc; The group’s advertising activity is separated from its search engine service.

What the Court of Justice said

• Since the search is accompanied, on the same page, by the display of advertising linked to the search terms, the processing is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of Spain.

Hot EU topics on digital worldGoogle data protection case – Spain – right to be forgotten (II)

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Google may be required to remove search on the basis of a person’s name

What Google said

• any information removal request must be addressed to the publisher of the website;

• to require the operator of a search engine to withdraw information published on the internet from its indexes means infringing the fundamental rights of publishers of websites, of other internet users and of the operator.

What the Court of Justice said

• every data subject has the right, without proving any prejudice, to obtain from the controller, the rectification, erasure or blocking of data, if the information is unlawful or in the course of time became inadequate, irrelevant or no longer relevant, or excessive in relation to its purposes.This right depends on the nature of the information and its sensitivity for the data subject’s private life and the public interest

Hot EU topics on digital worldGoogle data protection case – Spain – right to be forgotten (III)

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Hot EU topics on digital worldData protection – new hot topic

beatuscommqueror.wordpress.com

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Facebook, Amazon or Google are big data operators

What are the risks

• Big data would constituite a barrier to entry in the future

• However, the investments done by the initial operators should be considered

• Big data face a risk from a data protection perspective

What could be done

• Licensing obligations may be imposed to operators as to facilitate access – fair remuneration and conditions should be in place

• Access to facilities – non-discriminatory – similar treatment to equivalent conditions

Hot EU topics on digital worldBig data

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Hot EU topics on digital worldOnline sales

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Commission ongoing sector inquiry on online sales

• Mirrored by various local authorities (including Ro one)

• Restriction of Internet sales is a hard core restriction of competition – passive sales (Piere Fabre case)

• Aimed at assessing the exclusivities in promotion and restrictions to trade

- Amazon promoting the high marketing budgets products

- Restrictions to platforms

- Restriction on products

• Selective distribution - Internet should meet the objective requirements for selling the product

• Would be the opposite restriction be allowed (only Internet sales) ?

Hot EU topics on digital worldOnline sale digital inquiry

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How can someone protect a right or a legitimate interest when dealing with Internet content?

- Obligations of the service provider

- Obligation to notify and susbstantiate the request

- Evidences should be presented

- Limitations: rights of the press, freedome of speech

- Obligation to take down or face potential damages jointly with the one infringing the rights

- Due care should be exercised with protected IP (trademarkes, logos) and persons names.

Hot EU topics on digital worldNotice and take down

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Hot EU topics on digital worldProtection of intellectual property rights

(c) www.cartoonstock.com

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1. Can you copy everithing which is on the Internet?

– Internet is not a public database– Distributing illegal content is illegal in itself

2. What are the limitations to copying / using the information?

• Law 8/1996 on copyright • Non-comercial use vs commercial use• Quotes• Source and autor references

3. How one could protect the content?

– Copyright– Secrecy

Hot EU trends in the digital worldIntellectual property rights protection

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T +40 21 319 67 90E c.suliman@schoenherr.eu

Position Partner, Schoenherr

Practice Areas EU & Competition

Education Faculty of Law, University of Bucharest/Romania

Memberships Bucharest Bar Association

Languages Romanian, English

catalin sulimanLecturer

Thank you!