Category: Uncategorized

Today, Giovanni Buttarelli, the European Data Protection Supervisor, called for a re-engineering of regulation in the European Union in the age of big data and in light of the Charter of Fundamental Rights. If the actions suggested by the new EDPS opinion on  coherent enforcement of fundamental rights in the age of big data come to fruition we are going to see significant focus on the harms of big data including barriers to privacy-enhancing innovation and the hidden costs of excessive personal data disclosure.

Mr Buttarelli observed that while processing personal data is indispensable to web based services and the Digital Single Market many services have become dependent on covert tracking of individuals. Dominant companies may be able to foreclose the market to new entrants competing on factors which could benefit the rights and interests of individuals or to impose exploitative terms. Imbalances between service providers may also increase the price – in terms of personal data – disclosure far beyond what may be expected in a competitive market.

Pointing to threats posed to several fundamental rights by standards and behaviour that have become the norm in cyberspace, Mr Buttarelli called for dialogue and collaboration between consumer, competition and other regulators, updated rules on merger control to protect privacy and the even the creation of a space on the web where users could interact with a guarantee that they would not be tracked.

This is a bold and ambitious call from Europe’s top data protection supervisor but it echoes similar sentiments which were recently expressed by Competition Commissioner Margrethe Vestager and her acknowledgement that personal data is often the price we pay for web services and that market power can itself derive from control of large unique data sets.

Photo credit: @topgold

The Aarhus Convention Compliance Committee today accepted a communication filed by FP Logue Solicitors on behalf of its client, Right to Know. The communication alleges non-compliance by Ireland with the Aarhus Convention arising from delays in reviewing refusals by Irish public authorities to grant access to environmental information. The Aarhus Convention grants the public rights to access environmental information, participate in decisions affecting the environment and to access judicial and administrative remedies. Requests for access to environmental information must be granted within one month of request and where a member of the public considers that his request has been incorrectly handled he or she has a right to an expeditious and timely review by the Commissioner for Environmental information and the courts.

In our client’s view serious delays and inappropriate procedures constitute clear non-compliance with the Aarhus Convention.

The Aarhus Convention Compliance Committee is a body which sits in the United Nations in Geneva and is empowered to accept communications from members of the public concerning compliance by parties with the provisions of the Aarhus Convention. The communication will now be reviewed for admissibility by the Compliance Committee at its 54th meeting to be held in Geneva between 27 and 30 September and if it is found to be admissible the Committee will invite comments from the Ireland and others and will investigate the allegations of non-compliance.

Right to Know is an Irish NGO who’s objective is to improve, promote and advocate for greater access to information including environmental information. The objective of the communication is to reduce delays in reviewing decisions of public authorities so that final decisions are made in a timely way so that the public can be assured that requests are answered as quickly as possible.

The ACCC operates transparently and all documents are available online at http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/acccc2016141-ireland.html 

Under normal circumstances copyright protection lasts for the life of the author plus 70 years, this term of protection is harmonized in Europe by the Term Directive (2006/116/EC).

In some member states there are or were legacy rules for copyright in registered designs and for artistic works exploited by an industrial process. In Ireland such works have a shorter 25 year span of protection which starts on the date of application for an industrial design or the date of first marketing of the artistic work.

In 2011 in a case concerning copyright in the classic Italian Arco floor lamp, the CJEU said that it was impermissible under EU law to provide for a term of copyright less than the life of the author plus 70 years. Ireland now wishes to bring its copyright term for industrial designs into line with EU law and is proposing a transition period after which such copyrights will benefit from the longer span of protection.

This seems like good news for creators but bad news for imitators.

The consultation was launched yesterday and according to the Department of Jobs Enterprise and innovation:

This consultation is aimed at gathering stakeholder views with regard to the potential impacts on sectors of the Irish economy of extending the period of copyright to that period of life of the creator plus 70 years. The Government is seeking views as to which sectors would be affected and how. Views are also sought with regard to the length of the transitional time period. This would include the time required to change the behaviour on the part of those whose actions would infringe the copyright of others with the amendment of the Copyright and Related Rights Bill. This transitional period is also to give manufacturers of replicas time to dispose of or sell off their stock. We are also seeking views on the impact on rightsowners, the owners of artistic works and the industry generally.

The Department is interested in hearing from interested parties and in particular in relation to:

1. Will the proposed amendment potentially impact in a positive or a negative manner on businesses?
2. Would a short transition period before the amendment comes into force be the most appropriate and efficient?

For more information and a short discussion paper the consultation page. Interest parties have until Thursday 22 September 2016 to make there views known.

Why did the Irish Data Protection Commissioner go to the Irish High Court to refer questions of European Union law to the Court of Justice in Luxembourg rather than referring them herself?

Writing in the latest edition of Data Protection Ireland, barrister Gary Fitzgerald, director of the Irish Centre for European Law, has rowed in with an analysis of the law (see here). According to Fitzgerald there is nothing to stop the commissioner from bypassing the Irish courts and heading straight to Luxembourg with questions on the validity of European Union data protection law.

Many people asked why the commissioner needed to issue proceedings in the High Court to access the highest EU court following an unprecedented Irish court judgment. As readers will recall the Irish court joined the US government and others to proceedings initiated by the Data Protection Commissioner for the purpose of referring questions concerning the legality of personal data transfers outside the European Union.

Respected Irish Times journalist Karlin Lillington expressed bafflement at a decision that would needlessly add years to the procedure and cost millions in legal fees.

My column: Data Commissioner's office takes bizarre legal route in #schrems data privacy case https://t.co/p96WyPVd8n via @IrishTimesBiz

— Karlin Lillington 🦇 (@klillington) July 28, 2016

Complainant Max Schrems, is now faced with a multi-million euro litigation which includes three weeks in the High Court before fundamental issues of EU data protection law can finally be put to bed, he’s not happy.

https://twitter.com/maxschrems/status/758708704908759043

According to Fitzgerald

The CJEU in Schrems I put an obligation on each supervisory authority to vindicate the rights of EU data subjects. This can only be done by referring a question to the CJEU. The issue is whether the CJEU would reject a reference from the DPC on the grounds that it was not  a court or tribunal. The definition is flexible allowing CJEU to respond to the needs of justice in each case.

Schrems II sees a conflict between global trade, national security and the fight against crime on the one hand and fundamental rights of almost all EU data subjects on the other. It is one of the most important cases that the CJEU will ever hear.  Yet by not referring a question herself, the DPC has delayed a reference to the CJEU by almost a year, if not longer.

Clearly, it is this article’s view that the DPC does have the necessary characteristics to be classified as a court or tribunal. In addition, the need for a quick resolution of this dispute means that the CJEU would likely have accepted a reference, notwithstanding any doubts that it had about the judicial nature of the DPC.

The issue raised here is only going to get more significant. Given that there will certainly be a challenge to the new Privacy Shield, and that challenge could likely come from Ireland, the DPC and any party to the complaint will have a decision to make. The DPC will have to consider  making a reference, and if she fails to do so, the complainant, or data controller, will have to consider challenging this refusal. The best course of action would be for the DPC to refer a question and have the CJEU determine acceptance. Overall, it seems likely that the CJEU would, given the nature of Section 10 and the importance of the reference, accept it.

So it seems that as this case unfolds questions will not just be asked of the CJEU!

Photo credit: https://www.flickr.com/photos/22325431@N05/

In a recent decision of the Irish Patents Office, a trade mark application for ‘IRISH WATER’ in the name of Irish Water (“IW”), Ireland’s national water utility, was rejected for all the core goods and services covered by the application. The application was filed on 4 December 2012 by Bord Gáis Eireann, at that time Ireland’s national gas utility with no involvement in water supply. IW was set up in July 2013 and the application assigned to it in February 2014.

The ‘IRISH WATER’ trade mark application covered almost everything to do with water (see list below) as well as printed matter, publications and business services. The Patents Office examiner objected on the basis that ‘IRISH WATER’ is non-distinctive and descriptive for the goods and services. IW contested this at an oral hearing, resulting in the objections being waived for everything except “water, bottled water, bottled drinking water, aerated water, carbonated water, mineral water, sparkling water, table water” in class 32. With those goods deleted, the application proceeded to publication in the Patents Office Journal on 9 April 2014, still in the name of Bord Gáis Eireann as recordal of the assignment to IW had not yet been noted on the register, although this occurred immediately thereafter.

During the 3-month opposition period a Notice of Opposition to registration of the mark was filed by a member of the public on grounds including that the mark ‘IRISH WATER’ is non-distinctive and descriptive for the goods and services covered by the application. IW denied all the opposition grounds and, as well as filing counter-arguments, offered three specific defences:

(1) On examination the same grounds were previously raised and decided in IW’s favour;
(2) An application for ‘UISCE ÉIREANN’ (the Irish language translation of ‘IRISH WATER’) was filed on the same date, which proceeded unopposed to registration and it would be inequitable to refuse registration of the identical equivalent mark ‘IRISH WATER’;
(3) The mark ‘IRISH WATER’ was in use before the trade mark application date and had acquired a distinctive character as a result of the use made of it. IW submitted evidence of this use.

The Hearing Officer decided to partially uphold the opposition and refused the ‘IRISH WATER’ trade mark application for all goods and services except “printed matter, publications, information leaflets” and “business, administration and promotional advertising services”. In respect of the refused goods and services, the Hearing Officer found the mark ‘IRISH WATER’ to be devoid of inherent distinctiveness and unable to act as a badge of origin, and unable to perform the essential function of a trade mark as the goods and services are all (Irish) water related. Furthermore, the Hearing Officer found the mark ‘IRISH WATER’ to be descriptive as it consists exclusively of the intended purpose or characteristics of the goods and services, being the commercialisation of all activities associated with (Irish) water. The Hearing Officer also rejected IW’s three defences:

(1) Even though the same grounds were considered on examination and decided in IW’s favour, that decision was taken having heard IW alone. The Hearing Officer is obliged to consider this matter afresh, without paying heed to decisions made before. Opposition proceedings occur at a different point in the process and are initiated by third parties whose evidence and arguments must be taken into account;
(2) The ‘UISCE ÉIREANN’ application was treated in the same way as the ‘IRISH WATER’ application. It was not a case of one official language being given preference over another. The fact is no-one opposed the Irish language version, whereas the English version was opposed;
(3) Although much evidence was presented by IW to support its claim of distinctiveness acquired through use, there were a number of “fatal flaws” in that most of the material post-dated the trade mark application date, and the evidence showed IW was not even established at the application date, and none of the evidence was in respect of actual trade, rather it can be categorised as media coverage, political debate and information dissemination.

Comment:

This decision is not surprising given the nature of the words ‘IRISH WATER’ and the goods and services in question. The decision also highlights the requirement that, in order to benefit from the acquired distinctiveness proviso, an applicant must show genuine commercial use of the mark prior to the application date, and that preparations for use of the mark are not sufficient.

After being informed of the decision, IW went ahead and filed a new application to register ‘IRISH WATER’ as a trade mark. Presumably IW will have another go at proving distinctiveness acquired through use during the period from its launch in mid-2013 up to the new filing date, and it will be interesting to see how this fares.

Another takeaway from this decision is that the opposition was based on “absolute grounds” for refusal (the mark is non-distinctive or is descriptive) as opposed to “relative grounds” for refusal (there is an earlier conflicting trade mark right). While only trade mark right holders may file opposition on the basis of relative grounds, anyone – including a concerned citizen – may file opposition to an Irish trade mark application on the basis of absolute grounds.

---

List of goods and services – ‘IRISH WATER’ Trade Mark as filed on 04/12/2012

Class 6: Water pipes, water tanks, water valves all being of metal.
Class 9: Water meters, water level indicators, water level gauges, water level detection apparatus, water leakage detection alarms.
Class 11: Apparatus for filtering water, declassifying water, descaling water, apparatus for control of water supply, apparatus for purifying water, softening water, decontaminating water, apparatus for distribution of water, apparatus for supply of water for sanitary purposes, drinking water filters, drinking water supply apparatus, drinking water supply installations, pressurised water reserves, pressurised water tanks, regulation instruments for water supply, water pipes, water apparatus and installations, hot water sterilizers, water purifying units, water filtering units, water distilling units.
Class 16: Printed matter, publications, information leaflets.
Class 32: Water, bottled water, bottled drinking water, aerated water, carbonated water, mineral water, sparkling water, table water.
Class 35: Business, administration and promotional advertising services.
Class 37: Construction services relating to water supply mains and water pipes, cleaning of drains, cleaning of water cylinders, cleaning of water supply pipe work and water supply plumbing, cleaning of water tanks, installation, maintenance and repair of waterways and water installations, repair, maintenance of purifying apparatus and water pollution control equipment, water well drilling.
Class 39: Delivery, distribution and supply of water, public utilities in the nature of supplying water, public utility services in the nature of water distribution, services for the supply of water by pipeline, storage of water and reservoirs, storage of water in tanks, water distribution and supply.
Class 40: De-mineralisation of water, desalination of water, disposal of waste water for industrial processes, purification of industrial waste water, regeneration of water, rental of water filters, rental of water filtration units for commercial use, rental of water purifying apparatus, rental of water treatment equipment, treatment of waste water, treatment of water, waste and/or water treatment services, waste water reprocessing, water pollution control, water purification, water treatment.
Class 41: Educational services in relation to water, water management, water pollution, water safety, providing courses in the field of water management.
Class 42: Analysis of water, digital water marking, water quality control services.

Photo credit: https://www.flickr.com/photos/likeablerodent/

Just when photographers around the world thought it was safe to go back into the jungle, Naruto, the internet’s most famous monkey, raises his (not so) ugly head again.

Readers may recall the author’s cover story in the October 2014 edition of the Law Society Gazette wondering if copyright existed for photographs taken by animals, even those as cute as Naruto. If you have, in fact, been living in the jungle for the last five years here’s a quick recap to bring you up to speed. In 2011, photographer David Slater was going about his business in the Indonesian jungles when a macaque monkey grabbed his camera and took several shots including the now famous “monkey selfie”.

Slater posted the photo online from where it went viral ultimately ending up in the Wikimedia Commons collection of free to use photos and videos. When challenged Wikimedia contended that Slater could not own copyright in the photo since, despite owning the camera, he did not take the actual shot and because the US Copyright Office explicitly refuses to register copyright in non-human created works the image was effectively in the public domain.

In a further twist Naruto (acting through People for the Ethical Treatment of Animals) issued a lawsuit in the US District Court of Northern California against Slater claiming ownership of the copyright in the image and looking for royalties from Slater and others for their use of it. Slater managed to get this case thrown out on the basis that animals lack standing to sue under US copyright law but PETA has now appealed the lower court decision to the US Court of Appeal for the Ninth Circuit.

So it looks like Naruto fights on to have his day in court and in the meantime his famous “monkey selfie” will continue to remind us that beauty is definitely in the eye of the beholder.

 

The public and the industry are divided on reform of privacy rules in the electronic communications sector according to the summary report on the public consultation on the evaluation and review of the ePrivacy Directive published today by the European Commission. Industry doesn’t see the need for increased scope of application and tighter rules on tracking while the public and civil society want to see broader scope and more control for users over how they are tracked and profiled by suppliers of electronic communications services.

There are big differences in opinion between the public and industry over the need to have special rules for the electronic communications sector to ensure the confidentiality of electronic communications. A majority of responding citizens and civil society organisations indicated such a belief as well as a need to regulate the use of traffic data which is commonly used to monitor and profile internet and mobile device users. Industry respondents were less enthused by such rules with less than a third seeing a need for them.

Similarly citizens and civil society organisations are worried about the limited scope of the ePrivacy Directive since it does not include IM, VoIP and email applications and want to have the right to access services on their devices without necessarily storing identifiers such as cookies.

The Commission in now carrying out a detailed analysis of the replies to the consultation and will publish a full synopsis in autumn 2016. The results will feed into the design and implementation of EU policy and prepare the way for the evaluation and review of the ePrivacy Directive.

Photo courtesy of http://nyphotographic.com/ 

The results of a European Commission consultation on the evaluation and review of the ePrivacy Directive due to be published this week will be of interest to a wide range of online businesses due to the rapid evolution of online and mobile networked devices and services.

If European data protection supervisors get their way, operators of online services will be seriously constrained in how they profile their users’ behaviour.

Given the rapid changes in technology, new services have been developed which fall outside the scope of the directive even though they are functionally equivalent to traditional electronic communications services. For example, there are now a multitude of messaging apps and VoIP services equivalent to traditional telephone and SMS services. These services, while subject to general data protection, rules fall outside the scope of the more specific and detailed ePrivacy regime.

In a timely example, a recent study found that mobile phone battery status could be used to identify users and their devices.  In the case of the online transportation service, Uber, it has been suggested that it could adjust pricing customers with low batteries desperate to get a taxi before their phone died. It is clear from academic research that industry has moved far beyond cookies as the sole way of tracking user behaviour online.

The ePrivacy Directive was conceived in 2002 as the telecommunications sector switched from analogue to digital and from state monopoly to regulated market operation. Voice still dominated over data and the distinction between content and metadata was clear.

The directive forms part of the legislative basis for two long-standing aims of European integration: the internal market (through the free movement of personal data) and a high degree of protection of fundamental rights and freedoms of individuals.

In advance of the publication of the consultation results European data protection regulators acting through the Article 29 Working Party (A29WP) issued an opinion on the revision calling for an updated directive that offers the same level playing field and high degree of individual protection no matter what technology is used to deliver functionally equivalent telecommunications services.

To achieve this result the Article 29 Working Party recommends significant clarification to fundamental definitions and essential terms to, in effect, make ePrivacy rules technology neutral focusing on functionality and outcome.

The A29WP recommends a broad definition of “interception and surveillance” so that surveillance by any means falls within the scope of the ePrivacy directive. It also warns that the review should not be used to increase data retention powers. Anticipating new ways of profiling and monitoring users, the A29WP calls for strict controls on the non-core use of metadata:

The confidentiality of communication is a core right for a democratic society. Therefore, the confidentiality of communications and related metadata require stricter rules, especially because modern communication technologies enable massive collection of intrusive data with covert techniques, or at least techniques people are not fully aware of. The collection, processing and use of these data for other purposes than providing the communication must be exceptional and must only be allowed after users have been adequately informed and have provided consent. In order to better protect the secrecy of electronic communications, the Working Party therefore advises the EC to create a harmonized consent requirement for the processing of metadata such as traffic and location data. This consent requirement should apply to all traffic and location data, also when they are generated through sensors in a user device. The new rule should apply to all parties collecting and processing these data

If the A29WP recommendation is adopted Skype, Facebook and WhatsApp will be regulated under a revised directive in the same way as traditional telcos. Crucially operators of electronic communications services (including online and mobile services) will not be able to profile and monitor user behaviour without their knowledge or consent.

Photo credit: https://www.flickr.com/photos/g4ll4is/8521624548