What legal developments will 2012 bring?
Predicting the future is a dangerous game. Perhaps futurists and palm-readers rely on the fact that most people are mainly concerned with the current and future issues and do not have time to look back at what predictions were made. We set out below some predictions about what may be the hottest legal topics next year.
Cookies and behavioural advertising are likely to be the subject of an intense focus during 2012. The enforcement amnesty of the cookies law will expire on 26 May 2012 (see The year the cookie crumbled? in this month's Download). The ICO may well initiate action against a company in order to make an example of them. Behavioural advertising is likely to become more widespread and more tailored (especially as smart phones become smarter and more popular). The result will be greater action by the ICO and efforts by reputable companies to give more information and options to consumers.
At the end of January 2012, we expect the European Commission to publish its framework proposals for a new data protection law in Europe. It is likely to include proposals for a obligation to report any serious breaches of data security. The Commission could provide enhanced rights for individuals over their data, for example a right to have old content about them removed (a 'right to be forgotten').
With cloud computing now fairly established, we are likely to see headlines reporting a major data leak from or infiltration into a cloud. Hopefully, the misfortune of such a leak will help bring to the fore how important it is for companies to invest in data security, including in the cloud.
Over the last several hundred years, UK copyright lawyers looked at things their way and French, German and other copyright lawyers saw things another way. However, the implications of the EU harmonisation of aspects of copyright law is starting to have a profound effect. Across the EU, we are becoming 'European copyright lawyers' now (in the same way we have already become European trade mark and design lawyers).
There are many areas which are starting to be the subject of the decisions of the Court of Justice of the EU. The CJEU's has got a lot on its copyright to-do list, including answering questions such as:
- where does the restricted act of "making available" takes place?
- how broad is the copyright protection of databases?
- how far does the temporary acts of reproduction defence go?
- what is the scope of injunctions that can be granted against social media websites to filter content?
- how should the harmonised defences to copyright infringement be interpreted?
We are likely to see how anti-piracy legislation, such as the UK's Digital Economy Act and the US' Stop Online Piracy Act and the Protect IP Act, fares through the courts. Rights owners are likely to try to take more action against intermediaries to block unlawful content hosted or transmitted by them, in light of the Newzbin2 and L'Oreal v eBay decisions, notwithstanding the SABAM/Scarlet decision. It will also be interesting to see if there will be changes to terms of access to and licensing of online content in Europe, in light of the CJEU's decision in the FAPL/Karen Murphy case.
With regards to Professor Hargreaves' recommendations for reform of the IP framework, will 2012 be the year of progress towards new UK copyright legislation? The Government's feasibility study produce on creating the digital copyright exchange should be published next year. We will also see if the Government's proposals for "a substantial opening up of the UK’s copyright exceptions regime", including to introduce exceptions for parody, private-copying and text- and data-mining, gain any traction in Parliament.
The most salient question for libel reform is whether Parliament will progress the draft Defamation Bill. The Joint Committee's report on 19 October 2011 has many pro-free speech recommendations (and is unlikely to be popular with companies wanting to sue for libel), for example the claimant must prove serious and substantial harm to reputation. On 24 November the Ministry of Justice published a summary of responses to its consultation on the draft Bill. The next step is for the Government to publish its conclusions and then to introduce the Bill "as soon as Parliamentary time allows." With the spotlight on phone hacking at the moment (see below) and the media not exactly being in everyone's best books, it may be some time before Parliament decides (if at all) to introduce the Bill, which in essence should give the media more rights of free speech.
2012 is likely to result in more phone hacking-related news. Some of the civil claims may come to trial. Parliament is likely to present its report on News International following the questioning of witnesses including James Murdoch. The police investigation on phone hacking (Operation Weeting), email hacking (Operation Tuleta) and payments to police officers will continue and people may be charged and prosecuted. Finally the Leveson Inquiry will be continuing.
Privacy law was in the limelight in 2011 due to the cases relating to superinjunctions, Max Moseley's appeal to the European Court of Human Rights and hacking. Next year, the Joint Committee on Privacy and Injunctions is due to issue its report on the extent to which the law strikes the right balance between public interest and privacy. We may see discussion of how the English courts can escape from being bound by the Von Hannover decision in the Strasbourg court. However, with the press losing all sympathy over hacking, there may not be any concrete moves in this direction for quite some time.
London Olympics 2012
Inadvertent and deliberate ambush marketing is likely to see the London Olympics Association Right tested in court. Whether this comes about through something done on social media is difficult to predict. But the 2012 Olympics will certainly be the biggest social media sports event in history to-date.
There are many other areas to watch (social media, aggregation, contempt). Notwithstanding the looming return to recession, it is going to be an exciting year for media and technology and the law.
"Look out for legal developments on hacking, libel, privacy, cookies, EU copyright and the Olympics in 2012."
"There are many other areas to watch (social media, aggregation, contempt). Notwithstanding the looming return to recession, it is going to be an exciting year for media and technology and the law."