developments in intellectual property and social media law
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In-House Counsel Masterclass Developments in IP and Social Media Law #mhclawyers
Recent Social Media Case Law Update
Richard Woulfe
Partner
Mason Hayes & Curran
• CHARTER OF FUNDAMENTAL RIGHTS OF THE
EUROPEAN UNION
• (2010/C 83/02)
• Article 7 Respect for private and family life
• Everyone has the right to respect for his or her private and family life, home and
communications.
• Article 8 Protection of personal data
• 1. Everyone has the right to the protection of personal data concerning him or her.
• 2. Such data must be processed fairly for specified purposes and on the basis of
the consent of the person concerned or some other legitimate basis laid down by
law. Everyone has the right of access to data which has been collected
concerning him or her, and the right to have it rectified.
• 3. Compliance with these rules shall be subject to control by an independent
authority.
4
Digital Rights Ireland and Seitlinger v Minister for Communications, Marine and Natural Resources (C-293/12 and C-594/12) CJEU 8 April 2014
• 2006 Data Retention Directive
• obligation to set up mandatory data retention schemes, for the data
to be accessed later and used by law enforcement agencies (and
possibly intelligence services) for the detection, investigation and
prosecution of serious crime.
• "entail[ed] a wide-ranging and particularly serious interference with
the fundamental rights enshrined in … the Charter, without such an
interference being precisely circumscribed by provisions to ensure
• that it is actually limited to what is strictly necessary."
5
The Google Spain case (Google Spain SL v Agencia Espanola de Proteccion de Datos [2014] QB 1022
•
• CJEU 13 May 2014
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• Operation of a search engine must be classified as “processing of
personal data” within the meaning of Article 2(b) of EU Directive
95/46 (“the Data Protection Directive”) where that information
contains personal data.
• The operator of the search engine must be regarded as the data
controller in respect of that processing
• > Google Inc. in frame
• But Google Inc. is not in EU?
• “the very display of personal data on a search results page
constitutes processing of such data. Since that display of results is
accompanied, on the same page, by the display of advertising
linked to the search terms, it is clear that the processing of personal
data in question is carried out in the context of the commercial and
advertising activity of the controller’s establishment on the territory
of a member state, in this instance Spanish territory.”
7
• “the provisions of Directive 95/46, insofar as they govern the
processing of personal data liable to infringe fundamental freedoms,
in particular the right to privacy, must necessarily be interpreted in
the light of fundamental rights, which according to settled case law,
form an intricate part of the general principles of law whose
observance the Court ensures and which are now set out in the
Charter”
8
• “in light of the potential seriousness of the interference [with those
privacy rights of the data subject], it is clear that it cannot be justified
by merely the economic interests which the operator of such an
engine has in that processing.”
• “those rights of the data subject would generally override the
interests of Internet users but that would depend upon the nature of
information in question, its sensitivity for the data subject’s private
life, the interests of the public in having that information and whether
the data subject is a public figure.”
9
• “even initially lawful processing of accurate data may, in the course
of time, become incompatible with the Directive where those data
are no longer necessary in light of the purposes for which they were
collected or processed. That is so in particular where they appear
to be inadequate, irrelevant or no longer relevant, or excessive in
relation to those purposes and in light of the time that has elapsed.”
Collins v FBD Insurance plc. [2013] IEHC 137
• Mr. Justice Feeney decided that the Plaintiff was not entitled to
general damages under Section 7 of the Irish DPA in the absence of
any pecuniary loss.
• “the entitlement is not to damages for breach of duty, but
compensation for breach of duty. Compensation is intended to
place an individual in the position in which that individual would
have been apart from the wrong done. In general, an entitlement to
damages for distress, damage to reputation or upset are not
recoverable save where extreme distress results in actual damage,
such as a recognisable psychiatric injury.”
Vidal-Hall et al v Google Inc
• Court of Appeal 27 March 2015
1. the misuse of private information as a tort
• 2. damages can be awarded under the UK Data Protection Act 1998
where there had been no pecuniary loss.
• Article 23 of the Directive:
•
• Member states shall provide that any person who has suffered
damage as a result of an unlawful processing operation is entitled to
receive compensation from the controller for the damage suffered.
•
• The Court held that “damage” in Article 23 includes non-pecuniary
loss such as distress.
•
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• Article 8 of the Charter
• “everyone has the right to the protection of personal data
concerning him or her”.
• “It would be strange if that fundamental right could be breached with
relative impunity by a data controller, save in those rare cases
where the data subject had suffered pecuniary loss as a result of
the breach.”
14
Max Mosley v Google Inc, Google UK Limited [2015] EWHC 59 (QB)
• Mr. Justice Mitting 15 January 2015
• Directive 2000/31/EC, the E-Commerce Directive.
• Article 13 affords legal protection to Internet Service Providers
• Article 15 prohibits a general obligation to monitor the Internet
15
L’Oreal SA and eBay International AG [2012] Bus LR 1369
• where the Court stated:
• “the measures required of the online service provider concerned
cannot consist in an active monitoring of all the data of each of its
customers in order to prevent any future infringement of intellectual
property rights via that provider’s website.”
16
• “the Data Protection Directive and E-Commerce Directive must be
“read in harmony and both, where possible, must be given full effect
to.”
• “Leaving aside legal niceties, what matters is whether or not a
person, whose sensitive personal data has been wrongly processed
by an internet service provider, can ask the Court to order it to take
steps to cease to process that data.”
17
CG v Facebook Ireland Limited and Joseph McCloskey [2015] NIQB 11/2005 WL869036
• Mr. Justice Stephens 20 February 2015
• put on notice of the nature of the activities of the Second Defendant
by the first litigation
• the searches would have revealed a new profile page with an almost
identical name and with identical purposes
• he inferred that the First Defendant knew or ought to have known of
the profile page
• the capacity, resources and knowledge to look for and assess
material in relation to the Plaintiff on the Second Defendant’s profile
page without receiving any letter of claim or any complaint
18
Schrems -v- Data Protection Commissioner [2014] IEHC 310
• Mr. Justice Hogan 18 June, 2014
• 2000 Commission “Safe Harbour” Decision must be re-visited in
light of coming into force of the Charter
• Referred specifically to Article 8
Referral to the CJEU for preliminary ruling
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Conclusion
• Fundamental change in judicial approach
• How to respond?
• Be Compliant
• Be Transparent
• Art 11 - Freedom of Expression; “This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
• Art 16 – Freedom to conduct a business
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Recent Cases and Developments: IP Law
Gerard Kelly
Partner
Mason Hayes & Curran
Key Developments and Trends
Trade marks / passing-off
Copyright
Designs
Patents
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What is this?
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Registration of Shop Formats
Court of Justice:
Apple Inc v Deutches Patent- und Markenamt (2014)
Representation of the layout of a retail store, by a design
alone, without indicating the size or the proportions
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The Importance of a Name
Thomas Pink v Victoria’s Secret UK Limited (2014)
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The Importance of a Name (contd.)
Comic Enterprises Limited v
Twentieth Century Fox Film (2014)
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Google Keywords
Cosmetic Warriors Ltd v Amazon.co.uk Ltd (2014)
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Cosmetic Warriors v Amazon (contd.)
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Publicity Orders
Cosmetic Warriors Ltd v Amazon Co UK Ltd (2014)
Comic Enterprises v Twentieth Century Fox Film Corp (2014)
Thomas Pink Ltd v Victoria’s Secret (2014)
In Ireland?
Regulation 5: European Communities (Enforcement of Intellectual
Property Rights) Regulations 2006
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Merchandising issues
Fenty v Arcadia Group
(2015)
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Account of Profits
McCambridge v Joseph Brennan Bakeries (2014)
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Website Blocking Orders
Cartier International AG v British Sky Broadcasting Limited
(2014)
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Copyright
Has copyright law moved with technology?
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Content Distribution
ITV Broadcasting Limited v TV Catchup
Court of Justice (2014)
Court of Appeal (2015)
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The importance of T’s and C’s?
• Screenscraping
Ryanair Ltd v PR Aviation BV (2015)
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Linking
Svensson v Retriever Sverige AB (2014)
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Framing
Bestwater International GmbH v Mebes (2014)
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Injunctions against intermediaries
Sony and Others v UPC (2015)
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Designs Karen Millen v Dunnes Stores
High Court (2007)
Court of Justice (2014)
Supreme Court (2014)
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Karen Millen Limited v Dunnes Stores (2007)
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Karen Millen Limited v Dunnes Stores (2007)
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The Importance of Novelty and Individual Character
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Patents
Discovery
UK Standard Disclosure in Ireland?
Astrazeneca v Patents Acts (2014)
Boehringer Ingelheim v Patents Acts (2015)
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Unified Patents Court
EU / Community wide patent protection
Unified Patents Court – Central, Regional and Local
Divisions
Ireland has stated an intention to have a local division
This will facilitate:
(i) enforcement of EU patents in Ireland; and
(ii) defence of infringement cases in Ireland
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Conclusion
• The nature of IP litigation is changing
• The reliefs available are expanding and becoming more
creative
• IP litigation is becoming more of a strategic tool for
companies
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Q&A
Gerard Kelly
Partner
Mason Hayes & Curran
Richard Woulfe
Partner
Mason Hayes & Curran