U.S. Appeals Court for the Ninth Circuit Affirms a Preliminary Injunction against Movie Filtering Service on Copyright Grounds

By Valerio Cosimo Romano

On 24 August 2017, the U.S. Court of Appeals for the Ninth Circuit (“Appeals Court”) affirmed a preliminary injunction from the U.S. District Court for the Central District of California (“District Court”) against the defendant in an action under the Copyright Act and the Digital Millennium Copyright Act (“DMCA”).

 

The parties

Disney Enterprises, LucasFilm Limited, Twentieth Century Fox Film Corporation, and Warner Brothers Entertainment (“Studios” or “Plaintiffs”) produce and distribute copyrighted motion pictures and television shows through several distribution channels. The Studios employ technological protection measures (“TPMs”) to protect against unauthorized access to and copying of their works.

 

VidAngel, Inc. (“VidAngel” or “Defendant”) operates an online streaming service that removes objectionable content from movies and television shows. It purchases physical discs containing copyrighted movies and television shows, rips a digital copy and streams to its customers a filtered version of the work.

 

The lawsuit

The Studios filed suit against VidAngel, alleging copyright infringement and circumvention of technological measures controlling access to copyrighted works in violation of the DMCA. At the moment of filing suit, Defendant offered more than eighty copyrighted works, which it was not licensed or otherwise authorized to copy, perform, or access. VidAngel denied the statutory violations and raised affirmative defenses of fair use and legal authorization by the Family Movie Act of 2005 (“FMA”).

The Studios moved for a preliminary injunction, and the District Court granted the motion, enjoining Defendant from copying and streaming, transmitting, or otherwise publicly performing or displaying any of Plaintiff’s copyrighted works, circumventing technological measures protecting Plaintiff’s copyrighted works or engaging in any other activity that violates, directly or indirectly.

 

The District Court found that Defendant had circumvented the technological measures controlling access to the Studios’ works and violated the Studios’ exclusive right to reproduce and publicly perform their works. The District Court rejected instead Defendant’s FMA defense, holding that the service did not comply with FMA (which requires a filtered transmission to “come from an ‘authorized copy’ of the motion picture) and (ii) that Defendant was not likely to succeed on its fair use defense.

VidAngel appealed, claiming that FMA exempts VidAngel from liability for copyright infringement and that anti-circumvention provision of the DMCA does not cover the plaintiffs’ technological protection measures.

 

Merits of the case

First, the Appeals Court found that the District Court had not abused its discretion in concluding that Defendant’s copying infringed the Studios’ exclusive reproduction right, because lawful owners of a copy of the copyrighted work are only entitled to sell or otherwise dispose of the possession of that copy, and not to reproduce it.

The Appeals Court also found that the District Court had not abused its discretion in finding that the Studios are likely to succeed on their DMCA claim because VidAngel had offered no evidence that the Studios had either explicitly or implicitly authorized DVD buyers to circumvent encryption technology to access the digital contents of their discs.

The Appeals Court then moved to VidAngel’s defenses. It found that The FMA exempts compliant filtered performances, rather than the processes that make such performances possible. Moreover, the Court found that FMA  has been created to provide for the protection of intellectual property rights, which would not be preserved by VidAngel’s interpretation of the statute. Indeed, VidAngel does not stream from an authorized copy of the Studios’ motion pictures: it streams from the “master file” copy it created by ripping the movies from discs after circumventing their TPMs. Therefore, the District Court had not abused its discretion in concluding that VidAngel is unlikely to succeed on the merits of its FMA defense to the Studios’ copyright infringement claims.

In order to exclude infringement on copyright, Defendant also relied on the fair use theory.  In determining whether the use of a copyrighted work is fair, the Appeals Court considered again: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work. The Appeals Court sided again with the District Court, affirming that VidAngel’s service simply omits portions that viewers find objectionable, and transmits them for the same intrinsic entertainment value as the originals. Therefore, VidAngel’s use is not transformative (and thus it cannot be protected by fair use).

VidAngel also raised a defense related to the economic effects of its business. It argued that its service actually benefits the Studios because it purchases discs and expands the audience for the copyrighted works to viewers who would not watch without filtering. However, the Appeals Court confirmed the District Court’s view that VidAngel’s service is an effective substitute for Plaintiff’s unfiltered works and that neither the fact that VidAngel purchases the discs excuses its infringement, because any allegedly positive impact of Defendant’s activities on Plaintiffs’ prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs’ copyrighted works. Thus, and a market harm caused by the infringing activity can be presumed.

 

Irreparable harm and balance of equities

As for irreparable harm, the Appeals Court sided with the District Court in determining  that VidAngel’s service undermines the value of the Studios’ copyrighted works, their business model, their goodwill and negotiating leverage with licensees and that the loss of goodwill, negotiating leverage, and that non-monetary terms in the Studios’ licenses cannot readily be remedied with damages. The Appeals court therefore concluded that the eventual financial hardship deriving from discontinuance of infringing activities does not outweigh the irreparable harm likely to befall the Studios without an injunction.

For these reasons, the Appeals Court affirmed the preliminary injunction from the District Court.

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U.S. Company Pursues International Investment Arbitration against Panama over Trademarks

By Gabriel M. Lentner

The U.S.-based Bridgestone Licensing Services, Inc. and Bridgestone Americas, Inc.  lodged a claim against Panama over trademarks at the International Centre for Settlement of Investment Disputes (ICSID).

The claim relates to a decision rendered by the Supreme Court of Panama concerning Bridgestone’s trademarks in Panama and is based on the Panama-US Trade Promotion Agreement (TPA). The arbitral tribunal is currently dealing with “Expedited Objections”.

A key issue in this dispute is whether the ownership of the FIRESTONE trademark and rights to sell, market and distribute BRIDGESTONE and FIRESTONE branded products in Panama constitute “investments” under Art 10.29 of the TPA, as argued by the claimants. Under this provision the term “investment” is defined as “means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.  Forms that an investment may take include: … (f) intellectual property rights; (g) licenses, … and similar rights conferred pursuant to domestic law” In a footnote it is clarified that “Among the licenses, authorizations, permits, and similar instruments that do not have the characteristics of an investment are those that do not create any rights protected under domestic law.”

Bridgestone argues inter alia that its licenses are to be considered intellectual property rights and therefore covered investments. In addition, they contend that these licenses create rights protected under Panamanian law, since they concern trademarks registered in Panama.

Panama on the other hand challenges these arguments stating that Bridgestone does not have an “investment” within the meaning of the ICSID Convention (Art 25) and the TPA. Rather, Panama views the activities of Bridgestone as ordinary commercial transactions outside the scope of investment arbitration. More specifically responding to the Claimant’s argument, Panama disputes that the three licenses at issue do have the characteristics of an investment as they do not create any rights protected under Panamanian law.

Still pending, this case as it adds to the growing number of international investment disputes involving intellectual property rights (see cases of Philip Morris v Australia and Philip Morris v Uruguay, Eli Lilly v Canada). There is still a lot of uncertainty in this area of law and hence it will be interesting to see the final outcome and the reasoning of the tribunal dealing with the issue of investment and IP.

The Battle for CRISPR Technology: Who really Owns It?

By Bart Kolodziejczyk

The face of genetic engineering is being revolutionized with the emergence of the CRISPR/Cas9 technology. You have probably heard of it, but if you haven’t, here you go: CRISPR stands for Clustered Regularly Interspaced Short Palindromic Repeats, and it is a group of bacterial DNA sequences into which pieces of viral DNA were plugged into while the bacterium was being attacked. The CRISPR/Cas9 is a genome editing technology that can be used to alter genes in living organisms permanently.

In July 2017, a research team in the U.S proved that they could alter the DNA of human embryos using CRISPR/Cas9 technology. However, there have been controversies surrounding this technology, mainly because of ethical and biosafety concerns. Importantly, the question of who owns the patent to this technology is also undecided, which brings up the question of who can use the technology for commercial purposes.

The CRISPR battle is being spearheaded by the University of California (UC) against the Broad Institute in Cambridge, Massachusetts, and its associates. UC claims that it has a patent that covers the uses of CSISPR in every type of cell, but the Broad Institute claims that they should own the patent that covers the use of the technology in eukaryotes, which is the focal point for the development of human medicines using the CRISPR technology,

The group of litigants led by the UC argue that the U.S. Patent Trial and Appeal Board (PTAB) ruled wrongly in February in favor of the the Broad Institute in Cambridge, Massachusetts, and two associates — Harvard University and the Massachusetts Institute of Technology in Cambridge — in a judgement that said the Broad group invented the use of CRISPR usage in eukaryotic cells. In order to overturn the ruling, the UC filed an appeal based on the argument that the U.S. Patent Trial and Appeal Board (PTAB) “ignored key evidence” and “made multiple errors.” This argument was contained in a brief sent to the U.S Court of Appeals on July 25.

However, the battle for ownership of CRISPR took a dramatic turn when Millipore Sigma, a subsidiary of Merck KGaA, a German pharmaceutical company entered into the fray. In a claim filed by Millipore Sigma, they claim that they have the right to merge genetic information into eukaryotic cells using CRISPR and that “the method does not comprise a process for modifying the germ line genetic identity of a human being.” The battle seems far from coming to an end as a statement credited to the European Patent Office (EPO) shows that it intends to grant a patent to Millipore Sigma to own the use of CRISPR in this manner. There are other similar patents being submitted, and some have been granted, for example in Australia.

Therefore, even though the CRISPR technology has ushered in new frontiers in genetic engineering, the subject of who owns what looks like it might be the topic of controversial discussions for a while.

CJEU: Online Sharing Platforms like “The Pirate Bay” May Constitute Copyright Infringement by Indexing BitTorrent Files

By Katharina Erler

The Second Camber of the Court of Justice of the European Union (CJEU) ruled on 14 of June 2017 that the making available and management of a sharing platform on which user-generated BitTorrent files related to copyright protected works are indexed may constitute copyright infringement. In particular, the concept of Article 3 (1) EU InfoSoc Directive (2001/29/EC) “communication to the public” must be interpreted as covering situations, where the protected works are not hosted by the sharing website operators themselves, but by users through a peer-to-peer network, given that the operators of the sharing platform play an essential role in making those works available. The case is Stichting Brein v. Ziggo and XS4ALL Internet BV, C-610/15.

Stichting Brein, a Netherlands foundation which safeguards the interests of copyright holders, has initiated proceedings before the courts in the Netherlands requesting that the internet access provider Ziggo and XS4ALL shall be ordered to block the domain names and IP addresses of the online sharing platform “The Pirate Bay”. A significant number of the subscribers of Ziggo and XS4ALL use the online platform The Pirate Bay.

The Pirate Bay is a website, which allows its users to share music and video files, much of which, according to the opinion of Advocate General Szpunar of 8 February 2017 90 % to 95 %, contain protected works distributed without the consent of the authors. Since Pirate Bay is a website that offers the possibility for content-sharing in the context of a peer-to-peer network based on a BitTorrent protocol, the shared files are generated by its users and downloaded, divided into segments, from several peer computers in a decentralized way. In order to generate and share these files, users must first download a specific software called “BitTorrent Client”, which is not provided by Pirate Bay. Pirate Bay allows its users to find other users (“peers”) available to share the desired file by indexing torrent files related to the video or audio files on its website. The works to which those torrent files refer may be downloaded onto the users’ computers in segments through their “BitTorrent Client” software.

The Court of first instance upheld Stichting Breins request. However, the internet access providers filed an appeal against this decision. The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) noting that in the present case it has been established that (1) the actions of Pirate Bay make protected works available to the public without the authors consent and that (2) subscribers to Ziggo and XS4ALL, through Pirate Bay, make protected works available without the consent of the authors and thus infringe the copyright of those right holders.

The Hoge Raad, however, referred two questions to the CJEU: (1) whether Pirate Bay itself “communicates” works to the public within the meaning of Article 3 (1) of EU InfoSoc Directive (2001/29/EC) and if question (1) is answered in negatively, (2) whether Article 8 (3) of EU Directive 2001/29 and Article 11 of EU Directive 2004/48 offer any scope for obtaining an injunction against an intermediary, of that intermediary facilitates the infringing acts of third parties in the way referred to in question (1).

 

Legal context

Recital (23) of of EU InfoSoc Directive 2001/29/EC of the European Parliament and of the Council on the harmonization of certain aspects of copyright and related rights in the information society (InfoSoc Directive) states expressly, that author’s right of communication to the public should be understood in a broad sense and should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.

Recital (27) of EU InfoSoc Directive (2001/29/EC) states that the mere provision of physical facilities for enabling or making a communication is not covered by communication within the meaning of this Directive.

Article 3 (1) (“Right of communication to the public of works and right of making available to the public other subject matter”) of EU InfoSoc Directive (2001/29/EC) stipulates that Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

 

Consideration of the questions referred to the CJEU

Of two questions referred to the CJEU by the Hoge Raad der Nederlanden, the CJEU only explicitly addressed the question whether there is a “communication to the public” within the meaning of Article 3 (1) of the EU InfoSoc Directive by the operator of a website, if no protected works are available on that website, but a system exists by means of which metadata on protected works which are present on the users’ computers are indexed and categorised for users, so that the user can trace and upload and download the protected work by the basis thereof.

In essence, the CJEU answered the question, whether the operators of an online sharing platform themselves commit copyright infringment by managing and indexing BitTorrent files, thereby allowing users to share user-generated and user-stored files containing protected works.

First and in view of its past case-law, the CJEU emphasized, as a general rule, that any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is an “act of communication” for the purposes of Article 3 (1). To determine this general rule for user-liability, the CJEU explicitly referred to its recent series of decisions on copyright infringement via links (CJEU, GS Media, C-160/15) and/or add-ons (CJEU, Fimspeler, C-527/15), which refer to protected works.

With regard to the liability of Pirate Bay – the core question in the case at hand – the CJEU – in line with the opinion of Advocate General Szpunar – noted that it is common knowledge that copyright-protected works are made available through Pirate Bay in such a way that users may access those works from wherever and whenever.

Most importantly the CJEU highlighted, although video or audio files have not been placed online by the platform operators themselves but by its users, the operators of Pirate Bay play an essential role in making those works available. The CJEU hold that by making available and managing an online platform the Pirate Bay operators intervene with full knowledge of the consequences of their conduct, to provide access to protected works, especially by indexing on that platform torrent files, which allow users to locate and share those works.

It is worth mentioning that in line with its Filmspeler decision, the CJEU in this case further broadened the scope of the copyright holders’ right of communication to the public. According to the CJEU “full knowledge” of the communication party with regard to “the consequences of their conduct”, is sufficient to hold the operators themselves liable.

By referring to the opinion of Advocate General Szpunar, the CJEU additionally found, as a main criterion for finding the operators of a sharing platform themselves liable for copyright infringement, that without making such a platform available and managing it, the works could not be shared by the users or, at the very least, sharing them would prove to be more complex.

In that context, the CJEU emphasized that the website “The Pirate Bay” cannot be considered to be making a “mere provision” of physical facilities for enabling or making a communication within the meaning of recital 27 EU InfoSoc Directive (2001/29/EC). According to the CJEU, this is not only true because the platform indexes the torrent files in such a way that the works may be shared easily, but also because the platform offers an index classifying the works in different categories based on i.a. the genre. Moreover, the operators of Pirate Bay delete obsolete or faulty torrent files and actively filter the user-hosted content.

As to the question of whether the protected works were communicated to the public, the CJEU on one hand referred to the order of reference, which reveals that a large number of Ziggo and XS4ALL subscribers have downloaded media files through Pirate Bay. On the other hand, the CJEU noted that the operators on their sharing platform, explicitly claimed to have several dozens of million users (“peers”). This large number of users can potentially and at any time access the protected works, which are shared through Pirate Bay.

As a core matter, the CJEU discussed whether the Pirate Bay operators communicated to a “new” public, which is a public that was not taken into account by the copyright holders when they authorized the initial communication. This raises the decisive question of whether the operators were aware of the missing authorization of the copyright holders. In contrast to the opinion of Advocate General, the CJEU held that the operators of Pirate Bay may simply be found liable because they: (1) were informed that this platform, which they make available to users and manage, provides access to works published without authorization of the copyright holder and (2) were aware that the operators display, on blogs and forums available on their website, their purpose of making protected works available and encouraging their users to make copies of that works. In fact, the CJEU found that, if the operators are aware of the possibility of infringing copyrights through their own conduct, managing their website, they may be found liable of infringement themselves. Under this ruling a concrete knowledge of the illegality of an individual shared work is no longer required to justify the liability for platform operators.

Furthermore, the CJEU noted, that there can be no dispute that the online sharing platform is carried out with the purpose of obtaining profit therefrom, which is clear from the considerable advertising revenues generated by Pirate Bay.

For these reasons, the Court held that the concept of “communication to the public” must be interpreted as covering the making available and managing of a sharing platform. The Pirate Bay, which by indexing of BitTorrent files and providing a search engine, allows its users to locate and share protected works in the context of a peer-to-peer network without the consent of the copyright holders. In the light of the answer to this first referred question, the CJEU saw no need to answer the second question.

It is, however, worth mentioning that the CJEU just answered the referred preliminary question of whether the managing of the website Pirate Bay is covered by the concept of “communication to the public” and therefore may constitute copyright infringement. It did not take position as to Stichting Breins’ principle request in the main proceedings that in consequence of these considerations the internet access provider Ziggo and XS4ALL be ordered to block the IP addresses and domain name of The Pirate Bay.

Pro Bono by Algorithms: Rethinking Accessibility of Law in the Chatbot Era

By Irene Ng (Huang Ying)

At the recent ChatbotConf 2017 hosted in Vienna, Austria on October 2-3, distinguished speakers from leading technology companies convened to discuss an up-and-coming tech – none other than the chatbot. The speakers discussed a range of topics, such as “Competing with character”, “turn(ing) conversations into relationships”, and “building conversational experiences”, and other topics, which is viewable at the ChatbotConf website.

If you thought that the above topics were describing human relations, the fact is, you were not exactly wrong – the focus is actually about developing a human character for chatbots. For some of us, the chatbot might be a piece of tech that we are acquainted with. We may have interacted with these bots on social media platforms such as Facebook Messenger, or used bots on Twitter to track down Pokémon to catch on the famous assisted virtual reality game, Pokémon Go. In some cases, these chatbots are designed to provide customer support or service to the target audience. In other cases, such chatbots are built to provide simple, updated information to users, such as the TyranitarBot on Twitter, or Poncho, a bot that is designed to send “fun, personalized weather forecasts every morning”.

This growing prevalence and use of chatbots by businesses or organizations on various platforms is not something to be ignored. Within the legal industry, several companies have created “legal bots” that are designed to either direct users to the right place (e.g. what kind of lawyer they should be seeking), or perform an easy, repetitive service that can be easily automated and resolved. A famous case displaying the potential of chatbots in the legal industry is that of DoNotPay, a chatbot that has reportedly helped “overturn 120,000 parking tickets in New York and London” by challenging parking tickets. Besides DoNotPay, there are other bots in the legal industry such as LegalPundits that helps to determine what kind of legal advice the potential client needs, to “match [the client] with the resources that [the client] needs”.

As users become more comfortable with interacting with chatbots and using chatbots to help them solve their customer queries, an interesting avenue to explore is the use of chatbots for institutions providing pro bono services. Institutions that provide pro bono services, in particular those that run free legal clinics, can benefit from the use of chatbots in various ways. Firstly, these institutions can use chatbots as a screening tool to filter out whether the said applicant has met the means test to qualify for the free pro bono services. Means tests usually require applicants to fulfill a fixed set of criteria, and if such criteria are generally inflexible (e.g. applicant’s income must be less than USD$1,000.00, anything above this amount will be rejected), then the chatbot can be deployed to interact with these applicants to determine whether the applicant has, at the first screening, met the basic criteria for free pro bono services.

Similarly, institutions can use these chatbots to direct applicants or callers to the right ministry or non-profit organization that may be able to assist them further in the specific legal query that they have. For example, an institution providing pro bono services may often get inquirers making simples requests, such as “where can I repeal my parking ticket”, or “how do I get a divorce”. For the latter scenario, the chatbot can be trained to provide a response, indicating that the inquirer ought to seek a divorce lawyer, point the inquirer to a set of easily digestible information on divorces, followed by a list of divorce lawyers that the inquirer may contact.

Granted, there may – or will – be pitfalls in using chatbots to deal with legal pro bono queries. Applicants or inquirers that approach institutions providing pro bono services may become emotional when discussing their legal problems, and having a human touch attending to such a person’s legal needs may seem to be preferable than a machine. Furthermore, while chatbots can be trained to fulfill certain functions such as determining whether an applicant meets the means test, borderline cases may not be adequately attended to. Using the means test example provided earlier, where applicants must have an income of less than USD $1,000.00, an applicant who declares that she earns USD $1,001.00 may be rejected by the chatbot automatically if the developer did not train the chatbot to consider such borderline cases.

However, despite these concerns, there is still much room for chatbots to grow and help serve a public service function by providing greater accessibility to law. A good chatbot can help pro bono institutions make better use of their resources. By implementing a chatbot to help with simple tasks such as diverting inquirers to the right pages, or assisting volunteers to sift out genuine applicants that fulfill the means test, these pro bono institutions can divert resources or manpower, which would otherwise be used to tackle these relatively simple and repetitive tasks, to other areas, thereby increasing efficiency with the same limited budget that such institutions providing pro bono services have.

While there has been much chatter in the chatbot scene to develop an emotional intelligence for chatbots, ultimately, providing legal aid is a form of public service – and as with all types of service, it is unavoidable that humans may still want to converse with a real human being. As we move forward to explore new avenues of providing legal aid through different platforms in a more efficient and cost-effective manner, we should never forget nor neglect to still provide a physical helping hand to those who need legal aid – and not assume that a chatbot can take our place and release us from our social duty as lawyers to help the needy.

Processing of Personal Data – ECJ on Directive 95/46/EC in the Case “Peter Puškár”

By Maria E. Sturm

On 27 September 2017 the ECJ issued its preliminary ruling on the case Peter Puškár vs. Finančné riaditel’stvo Slovenskej republiky, Kriminálny úrad finančnej správy (C-73/16) which gives helpful guidelines on the lawfulness of the processing of personal data by public authorities.

  1. Case

The financial authorities of Slovakia have drawn up a list of persons which are considered to be front men for several companies. In detail, the list contains the names of the persons, their tax identification number, their national identification number, and the companies they are associated with. Peter Puškár is one of those persons and wanted to be deleted from this list. The case has several facets, touching questions regarding Data Protection Directive 95/46/EC, but also the Charter of Fundamental Rights of the EU. Therefore, the Supreme Court of the Slovak Republic requested a preliminary ruling of the ECJ under Article 267 TFEU.

 

  1. Questions

The Supreme Court of the Slovak Republic posed four questions:

  • The first question is a procedural one, asking if an obligatory pre-trial proceeding is admissible in cases concerning the procession of personal data.
  • The second question, also of procedural nature, covers the problem of the admissibility of the list as evidence.
  • The third question finally asks, if such a list is a legal form of processing personal data.
  • The fourth question refers to the relation between the European Court of Human Rights and the Court of Justice in cases of differences between the case-laws. However, the ECJ regarded this questions as inadmissible because of its hypothetical nature. Therefore, it will not be further covered in this article.

 

III. Ruling

  1. On Question n°1

Question n° 1 refers to Art. 22 of directive 95/46/EC. This articles requires Member States to provide a judicial remedy for any breach of the rights guaranteed with regard to the processing of data. So the question is: does an obligatory pre-trial proceeding harm this right to judicial remedies, as it makes the whole process more complex and more expensive? The Slovak administrative authorities argued, that a pre-trial proceeding offers the chance for a quick resolution, if the administration follows the argument of the complainant. Furthermore, unexpected lawsuits can be avoided and the ensuing lawsuit will be more efficient, because arguments of both parties are already documented. ECJ ruled, that if the pre-trial is not too long and not too expensive and there is no obvious discrepancy between the advantages and disadvantages of the pre-trial proceeding, it does not harm Art. 22.

 

  1. On Question n° 2

The Slovak financial authorities claimed, that the list cannot be admitted as evidence, because it is confidential and for internal use only. This could be a restriction of the right to an effective remedy according to Art. 47 of the Charter of Fundamental Rights of the EU. Such a restriction can only be legal, if it is regulated by law, respects the essential content of the right, is proportionate and conforms to accepted aims of the common welfare of the EU. This is highly questionable in this case, as Art. 12 of directive 95/46/EC guarantees every data subject the right of access to the processed data and Art. 10 and 11 guarantee that information about processed data is provided to data subjects. Therefore, Mr. Puškár must have access to the list, which fulfills the definition of personal data according to Art. 2a) of the directive, and the financial authorities have no reason to withhold it during the lawsuit.

 

  1. On Question n° 3

The third question finally refers to the substance of the directive and requires a definition of the legality of processing personal data in such a list. Being part of this list can harm the reputation of the person as well as the presumption of innocence. Furthermore, it can harm the entrepreneurial freedom of the companies related to this person. On the other hand, according to Art. 7e) of the directive, data can be processed, if it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority. The goal intended by setting up this list was to ensure tax collection and to avoid tax fraud, both legal public tasks. Furthermore, the list has been set up by those authorities who are in charge of these tasks. This is important, as Art. 6 I b) requires the explicit connection between the aim and the task. However, taking into account the disadvantages for the affected persons, the list is only admissible, if there is sufficient indication for the suspicion.

It is now up to the Slovak courts to re-examine the case and see if the financial authorities worked within these guidelines set up by the ECJ.

 

  1. Relevance

Directive 95/46/EC has been replaced by the General Data Protection Regulation (Reg 2016/679; see also TTLF Newsletter of February 3, 2017) which applies from May 25, 2018 on. However, the articles in question in this verdict all form part of the new regulation with regard to content:

  • Remedies required in Art. 22 Directive 95/46/EC, are now required by Art. 79 I Reg 2016/679.
  • The right of access and information according to Art. 10, 11, 12 Directive 95/46/EC can now be found in Art. 13, 14, 15 Reg 2016/679.
  • Art 6I b) Directive 95/46/EC is now Art. 5 I b) Reg 2016/679, and Art. 7e) Directive 95/46/EC is now Art. 6 I e) Reg 2016/679.

 

Therefore, the guidelines for interpreting the directive, set up by the ECJ in this verdict will still be applicable to the new regulation, which enters into force in 2018.

Transatlantic Antitrust and IPR Developments, Newsletter Issue No. 3/2017 (June 12, 2017)

Contributors: Bart Kolodziejczyk, Catalina Goanta, Gabriele Accardo, Katharina Erler , Maria E. Sturm, Marie-Andrée Weiss,
Martin Miernicki, Nicole Daniel, Nikolaos Theodorakis

Editor-in-chief: Juha Vesala


Contents     

Antitrust

United States

Apple and Qualcomm Proceeding

European Union

Dow/DuPont Merger Cleared by EU Commission

Intellectual property

United States

Samsung Wants New Trial in the Wake of the Recent Supreme Court Decision on Design Patents

Ninth Circuit: Using a Trademark as a Verb Is Not Automatically Generic Use

Athletes’ Right of Publicity Claim Preempted by Copyright Act

European Union

Streaming by Using a Multimedia Player: ECJ Rules in Favor of Copyright Holders

CJEU: EU-Directive 2001/29/EC Does Not Permit National Legislation to Provide a Special Defense to Copyright Infringement for Retransmission of Television Broadcasts via the Internet

Other developments

European Union

Elite Taxi vs UBER – Opinion of the Advocate General on UBER’s Activity in Spain

Big Data: Italian Authorities Launch Inquiries on Competition, Consumer Protection and Data Privacy Issues

United States

Consumers on Fyre: Influencer Marketing and Recent Reactions of the United States Federal Trade Commission

International

China’s New Cybersecurity Law: A Different Type Of Dragon

G20 Policy Developments in 2017

Read More…