2011 was a very eventful year in Ireland for legal developments in Technology and Intellectual Property with the completion and delivery of the Facebook Data Protection Audit Report, further efforts to curb illegal downloading, the new e-Privacy Regulations and changes to the law on the use of website cookies. 2012 is shaping up to be just as eventful and below is a brief overview of some of the expected key legal developments in the coming year.
New Data Protection Regulation and Related Developments
A proposal for a new Data Protection Regulation was published by the European Commission on 25 January 2012. The Regulation will supersede the existing Data Protection Directive (95/46/EC). Once approved at European level, it will be directly applicable in each EU member state without the need for local implementation. A separate Police and Criminal Justice Data Protection Directive is expected to deal with the use of personal data in connection with the prevention, investigation and prosecution of criminal offences. January 2012 also saw the first set of Binding Corporate Rules for international data transfers approved in Ireland by the Data Protection Commissioner. Further applications for approval are anticipated during 2012 and beyond.
Enforcement of Cookies Regulations
In July 2011 Irish Regulations came into force which significantly changed the law on the use of website cookies. Website operators must now provide users with “clear and comprehensive information” about the type of cookies being used. Specific consent to the use of cookies is also required. The Data Protection Commissioner has not yet provided any detailed guidelines regarding compliance with the new Regulations, but has hinted that changes to browser settings may be one solution. All eyes will be focused on the Office of the Data Protection Commissioner in 2012 in anticipation of updates on the enforcement of the new rules.
Illegal Filesharing
Draft European Union (Copyright and Related Rights) Regulations were published on the 26 January 2012. The Regulations amend the Copyright and Related Rights Act 2000 and allow a copyright holder to apply for an injunction to compel Internet service providers to block access to websites considered to be engaged in piracy. The current draft of the Regulations has given rise to a vigorous campaign for more sophisticated reform, and a full parliamentary debate is expected. In the meantime, EMI Records (Ireland) Ltd and others have issued High Court proceedings against the State for its alleged failure to implement aspects of EU copyright law. 2012 promises to be an eventful year for developments on illegal downloading.
Consumer Rights Directive
A new Consumer Rights Directive is expected to be introduced during 2012. It is anticipated that this Directive will consolidate the law on distance contracts. Implementation of the new Directive into domestic law is expected before the end of 2013.
Ambush Marketing
With events such as Euro 2012 and the London Olympics just around the corner, we can expect to see attempts by some companies at ambush marketing. Ambush marketing is a form of commercial exploitation which generally involves creating an association with an event without paying any sponsorship fees. The organisers of such events will want to protect the brands of official sponsors paying substantial sponsorship fees, who themselves will want a return on their investment. It will be interesting to note what marketing ploys will be adopted by the ambush marketers and any response of the authorities.
Ongoing Smartphone/Tablet Patent Wars
What began as an Apple v Google Android conflict has morphed into a multi-million dollar global patent war between almost all smartphone/tablet producers including Apple, Google, Samsung, RIM, Motorola, HTC and many more. We can expect many developments throughout 2012 as the balance in control of global actions shifts from entity to entity in a series of complex suits and countersuits.
EU Telecoms Package
It will be interesting to note the impact of the statutory instruments (SIs) introduced in July 2011 as part of Ireland’s commitment to making reforms in the telecoms industry. The SIs are expected to promote greater broadband penetration as well as encouraging investment and competition in next generation networks.
New EU Patent
There are ongoing proposals to implement a unified EU patent system. Ministers from 25 of the member states have supported the unified patent system and negotiations are ongoing in relation to the finer details of the new system. The unified EU patent may be implemented without Italy and Spain who have raised concerns regarding the proposal to make EU patents available only in English, French and German.
Generic TLDs
In January 2012, ICANN began accepting applications for new generic top-level domain names permitting applicants to apply to register gTLDs of their choice.
We are only two months into 2012 and already exciting developments in Technology and Intellectual Property are here or just on the horizon. It promises to be a major year for data protection, illegal downloading and the ongoing patent wars between smartphone users. Consumer law is expected to undergo a substantial overhaul while the change of law in relation to the use of website cookies will mean more control for users over how their information is stored electronically. In the meantime, the rapid pace of development in the technology sector in areas like cloud computing is bound to continue to throw up all manner of legal challenges. 2011 was a year for milestones and this trend looks set to continue in 2012.
Contributed by John Magee and Brian McElligott.
