current eu regulatory debates in a nutshell

© Cullen International SA 2017

Current EU regulatory debates (in a nutshell)

Elena Scaramuzzi – Cullen International

Washington DC – December 2017


Digital Single Market strategy

Addressing ‘remaining barriers’

Specific problems addressed by targeted instruments… Examples:

2. Reform of AVMS Directive

1. Reform of telecom package

5. Data protection, privacy

3. Reform of copyright rules

4. Responsibility of platforms


Electronic communications - today

Framework

E-Privacy

Access & Interconnection

Authorisation

Universal Service

Directives

BEREC

Relevant markets

Article 7/7a

NGA

Termination rates

Non-discrimination

Regulations Implementing measures

Roaming I, II, III, IV

Broadband Cost

ReductionFunding (CEF, EFSI)

Telecoms Single Market

Roam Like At Home


1. Scope of the Telecoms Review (Sep. 2016)

Framework

Access & Interconnection

Authorisation

Universal Service

Directives

BEREC

Relevant markets

Article 7/7a

NGA

Termination rates

Non-discrimination

Regulations Implementing measures

E-Privacy

Separate review

European Electronic

Communications Code

New Regulation

Subject to periodical

review


OTTs: new definitions

(but differentiated obligations on

number-independent ECS providers)

Electronic communications services (ECS)

Internet access

services (IAS)

Interpersonal

communications

services (ICS):Conveyance of

signals

(M2M,

broadcasting)

Number-

based

Number

independent


Proposed Electronic Communications Code

Main changes

Access and

market analysis Spectrum Definitions

Consumer

rights

Universal

serviceGovernance

Co-investment

Symmetric

access

Wholesale

only25 years &

easier renewals

More

coordination

ECS, ICSOTTs: Privacy and

security

>24 months if

instalments Contract template

Other fromParl

State budget

Scope revised

“Affordable” BB

for allBEREC

Status and powers


Linear TVUnchanged

On-demandGeneral requirement replaced by detailed

obligations

Member states must require providers to:• secure at least 20% share in catalogue• ensure prominence (not defined)

Must apply exceptions for:• low turnover or low audience providers (not defined)• SMEs (as defined by EU law)

Can apply exceptions also where "impracticable or unjustified” (service nature or theme)

2. AVMS Directive review (May 2006-ongoing) Promotion of EU works by on-demand services

Member states can require financial contributions from: • providers under their jurisdiction• other providers that target their national audience,

• if contributions are based only on the revenues earned in the targeted member states

• if the member state of establishment imposes contributions, it takes into account contributions imposed in the targeted MS (avoid double imposition)

• if rules comply with EU law, in particular state aid


On-demand services: align rules on

protection of minors for all providers

(linear and on-demand)

For programmes that could be harmful:• measures (including time watersheds,

age verification, or other technical tools) proportionate to potential harm to ensure that minors do not normally see them;

• sufficient information to viewers (e.g. through content descriptors), encouraging co-regulation

Total ban for seriously harmful

content lifted

Stricter measures for seriously harmful

content, new measures for content likely to be harmful, and new information

requirements

For programmes that are seriously harmful, such as pornography and strong violence, the strictest measures (e.g. encryption and parental control)


Large, and if main purpose is to entertain,

inform, educate the general public

Store large amounts of programmes and user-

generated videos

Despite responsibility on content, they determine

organisation (hosting, display, tagging,

sequencing)

At least one entity ofsame group is established

in a EU member state

Video-share platforms: Covered IF:

Upload feature


Video sharing platforms (AVMS directive

reform)

➢ Video-sharing platforms to take appropriate measures

to protect:

• minors from harmful content

• all citizens from incitement to hatred or violence

➢ Such measures may include:

• Encryption, parental control

• Time watersheds

• Age verification

• Content descriptors


3. Copyright reform (Sep. 2016 – ongoing)

Responsibility of platforms

Copyright reform (September 2016 - ongoing)

➢ Is the value generated by online content distribution fairly shared between distributors & rightsholders?

➢ Online providers that store and provide to the public access to large amounts of works uploaded by their users must implement effective content recognition (i.e. filtering) technologies

➢ (Conflict with e-Commerce Directive?)


4. Illegal content

Responsibility of platforms

Code of conduct (June 2016) - EU Internet Forum

➢ reviewing notifications for removal of illegal

hate speech in less than 24 hours

➢ removing or disabling access to such content, if

necessary

➢ not delivering the expected results


Detection & notification Removal

Prevention of re-

appearance

Transparency

The guidelines:

• do not define what constitutes ‘illegal content’, as this is determined by EU

and national laws

• complement notice and action procedures that EU member states have set

at national level (for instance in the case of Germany regarding illegal hate

speech and Italy regarding copyright-infringing content)

Guidelines on notification & removal of

illegal content (Sep. 2017)


5. General Data Protection Regulation

Key changes

Extended territorial scope

Strengthened consent

requirement

Reinforced obligations for controllers and

processors

Reinforced rights for the data

subject

‘One-stop-shop’ mechanism

Increased penalties


• Establishment in

the Union

• Offering of goods or

services to /

monitoring

behaviour of data

subjects in the

Union

General Data Protection Regulation

Extended territorial scope

• Establishment in

the Union

• Equipment in the

Union


Proposed e-Privacy Regulation

Key changes

Confidentiality of communications: extended scope,

updated requirements

Cookies and similar tracking

technologies: consent centralised in certain software

Wi-Fi tracking and similar technologies: a prominent notice

Enforcement aligned with GDPR


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