< Back

IP and media predictions: 2020

Even in this era of unprecedented political change, 2020 promises to stand out. We already know from Ursula von der Leyen's Political Guidelines that, for the EC, completion of the Digital Single Market and tackling various forms of online harm are priorities. Beyond that, there are many political unknowns.

December 2019

By the start of the year Ursula von der Leyen will have replaced Jean-Claude Juncker as President of the European Commission and the UK might have a new government. By its end we will be on the cusp of a new German presidency and perhaps a new US one too. All of this promises new regulatory currents for the online environment. At UK level, with Brexit still in the balance, serious policy-making in other areas may continue to be drowned out in 2020 as it has been over the past three years.

Despite the uncertainty, what is clear is that there is a growing focus among policy-makers on the liability of online operators, the rights of creators, privacy laws and the growing impact of China so here are our top five predictions for the year ahead.

Online operators will be subject to even greater regulation especially around online harms

In April 2019, the UK government published proposals to tackle a range of online harms in the Online Harms White Paper. Online operators have been shielded from many types of liability by the 'safe harbour' provision in the EU e-Commerce Directive. This provides that online operators who merely host rather than create content, are not liable for illegal content unless and until they have actual knowledge of it. In practice, this means that illegal user-generated content (UGC) can potentially be viewed many times before being taken down. When that material includes the live streaming of terrorist attacks or promotion of self-harm and suicide, the potential for harm is clear.

The pressure for increased regulation has been growing for some time, but what form it should take has been difficult to agree due to the range of potential harms and volume of UGC. The White Paper is an attempt to develop a comprehensive regulatory regime covering online terrorist activity, child abuse, hate speech, harassment, cyberbullying, disinformation and advocacy of self-harm. Controversially, it seeks to regulate content that is legal but nonetheless harmful as well as content that is illegal. Under the proposals, operators will have to comply with a statutory duty of care which will be underpinned by Codes of Practice for each type of harm (see our article).

While the proposals are currently in the form of a White Paper, the Conservative Government made clear in the October 2019 Queen's speech, that it intends to move forward with draft legislation. There is also evidence that the White Paper has cross-party support. This means we can expect some form of legislative action in the coming year, with interim Codes of Practice sooner, whatever the outcome of the election. We can also expect greater regulation at EU level, with the incoming Commission President intending to tackle issues such as disinformation, online hate messages and electoral interference.

The new Copyright Directive could change the market for UGC and news, and bolster the rights of creators

In April 2019, the controversial new EU Copyright Directive (2019/790) was finally adopted. Its stated aim is to achieve "a fair balance" between the rights of creators/rights holders and users such as platforms, news aggregators and those who exploit creative works. While the devil will be in the detail – Member States having until 7 June 2021 to implement the Directive – there is scope for the new Directive to impact the markets for UGC and news (see our article).

Much controversy surrounds Article 17 (formerly Article 13) of the Directive, which limits the ability of content sharing platforms to claim the benefit of the 'safe harbour' provision in the e-Commerce Directive. They may become directly liable for infringing content uploaded by users unless they make "best efforts" to obtain authorisation from rights holders to use their works and to ensure that unauthorised works notified to them are unavailable.

Platforms will therefore have to make a commercial decision as to which content, if any, they wish to license from rights holders and will most likely have to implement some sort of filtering mechanism to identify licensed and unlicensed content. Given increased costs for platforms, we might see a change in the market for this type of UGC, with new options for consumption and an increase in paid-for services. We might also see an increase in the blocking of legitimate content as platforms look to mitigate their legal risks by adopting broad-brush policies.

Article 15 (formerly Article 11) of the Directive is also controversial. It aims to encourage online operators (such as news aggregators and search engines) to obtain licences from EU press publishers if they wish to use anything other than a bare link to or "very short extract" from press publishers' news articles. The aim is to recognise the significant investment press publishers make in news at a time when there is a rise in fake news and decline in local media.

Some operators may try to circumvent this new right by no longer aggregating or previewing news articles or videos and/or relying instead on bare or "headline only" links to underlying articles. This happened in Germany when a similar law was introduced and looks set to happen to some extent in France, which has already implemented Article 15. Other operators – aware of the considerable political pressure to make Article 15 work – have committed (at least in France) to passing on a share of revenues to press publishers. It could open the door to new models of revenue generation for search engines and news aggregators, which have traditionally relied solely on revenue from advertising. Either way, there are likely to be disputes about what constitutes "very short extracts" and whether the use of headlines in links is permissible.

Whatever happens, it is clear that the EU intends to try to bolster the rights of creators. Indeed, the Copyright Directive also includes important provisions aimed at fairer remuneration for authors and performers. Whether the Directive will be implemented in the UK is still unclear – the current government having highlighted online copyright as an area of law on which it might seek to diverge from the EU on Brexit. However, it seems unlikely that the UK could go its own way, at least in the short term.

Defamation and privacy-based claims will continue to rise, fuelled by #MeToo and high profile litigants

This year's big Supreme Court decision in Lachaux, confirming that section 1 of the Defamation Act (2013) raises the threshold for defamation claims and that words must have consequences to be actionable, is likely to continue having an effect on claims in 2020. For example, court battles will take place (and at significant cost) early on in proceedings with preliminary issues trials on meaning. Some claimants may abandon defamation claims altogether and opt to protect their reputations and rights via other claims, such as data protection or misuse of private information.

It's not clear whether the Lachaux decision clarifies the position regarding section 1(2) and serious financial loss (how is serious harm in this context different to special damages?), but hopefully the court will have a chance to update the law in 2020.

While 2019 brought a degree of clarity to section 4 and the Public Interest Defence (see Economou and Serafin), 2020 may provide further clarity with Serafin on appeal to the Supreme Court. Another case on its way to the Court of Appeal next year is ZXC v Bloomberg. The appeal court will be asked to determine if a person being investigated by the police before charge generally has a reasonable expectation of privacy (as the High Court has ruled in that case and in the Cliff Richard v BBC case). Meghan Markle's copyright and privacy claim against Associated Newspapers could also be listed for trial in 2020, which will no doubt attract considerable attention.

Online, the recent case of Eva Glawischnig-Piesczek v Facebook Ireland Ltd helped clarify the ability of courts in Member States to grant orders requiring the removal of identical or equivalent defamatory allegations, as well as the original defamatory allegations, and that such an order could be made worldwide as long as it was within the framework of international law. While a positive development for claimants looking for orders which can keep pace with, and halt, the proliferation of false and unlawful allegations on social media, it takes things no further forward for those looking to obtain results in the USA. This is because the USA's SPEECH Act (in addition to any First Amendment hurdles encountered by those trying to enforce foreign defamation orders against publishers or hosts in the US courts) will maintain the barrier to doing so.

If claimants were looking to the right to be forgotten to assist them in having false URLs to false stories appearing in their search results as an alternative, the decision in Google v CNIL has made it clear that EU law cannot compel Google to delist and remove in the USA. This was to be expected, but 2020 is likely to see claimants finding other ways to deal with search results in the United States, perhaps via more SEO or direct actions against the underlying publishers.

China will come under the spotlight

With China being the world's largest exporter of goods and the second-largest importer of goods, as well as an increasingly significant player in digital media, Europe's relationships with it are of growing importance. Incoming European Commission President Ursula von der Leyen recently commented that, as Beijing's largest trading partner, the EU needs to do more to influence the conditions under which business is conducted with China.

China has, in recent years, made some efforts to update its IP laws including a recent amendment to its trade mark laws to try to combat trade mark squatters. We can expect to see increasing pressure on China to update other aspects of its IP laws particularly around IP hijacking. We can also expect to see Chinese companies exercising their purchasing power in the UK and Europe as demonstrated by the recent purchase by Fosun of the Thomas Cook brand and IP assets.

Brexit will be big – if it happens!

The impact Brexit will have on brands and the entertainment sector has been much written about, but there is also scope for it to impact other UK laws in the medium to long term. The UK government has highlighted online copyright as one area of law in which the UK might seek to depart from the EU post Brexit. There is also scope for a gradual divergence of IP case law in the UK from its EU counterpart. The key for politicians will be making the UK an attractive place to invest and carry on business, while regulating against online harm and infringement and protecting rights holders.

Experts: Louise Popple, Mark Owen, Michael Yates and Tim Pinto

If you have any questions on this article please contact us.

Video camera
Louise Popple


 

Louise, Michael and the team look at the big issues for IP and media in 2020.

"The key for politicians will be making the UK an attractive place to invest and carry on business after Brexit, while regulating against online harm and infringement and protecting rights holders."