regulation – Cyber Law Watch

EU Digital Services Act: Fundamental Changes for Online Intermediaries?

Nov 21 2022

By Claude-Étienne Armingaud, Dr. Ulrike Elteste and Dr. Thomas Nietsch

The European Union has taken another step to set out its new legal framework for online intermediaries. Following the publication of the Digital Markets Act (Regulation (EU) 2022/1925) in the EU Official Journal on 12 October 2022, the Digital Services Act has now also been published in the EU Official Journal as Regulation (EU) 2022/2065.

While the Digital Markets Act focuses on the behavior of large “gatekeepers” towards other businesses, the Digital Services Act aims to fully harmonize the rules on the safety of online services and the dissemination of illegal content online. In particular, its Articles 4 to 10 replace the current provisions on the liability privilege enjoyed by online intermediaries in the eCommerce Directive 2000/31/EC. The privilege as such broadly remains intact, but is punctured in a number of ways. For example, the Digital Services Act encourages preemptive screening and provides that “trusted flaggers” must receive priority in the future. Providers of online platforms that allow consumers to enter into distance contracts with traders must obtain certain minimum information from the traders they admit to their platform. They may have to notify consumers if they become aware that products sold on their platform do not comply with legal requirements.

Again, “very large” online platforms and search engines receive the legislator’s (and the EU Commission’s) special attention. They must comply with additional transparency requirements and analyze and mitigate systemic risks.

But other intermediaries must also timely amend their terms of service, improve their complaint handling, and increase their transparency to avoid fines that can reach 6% of their global turnover. Specifically, online platforms must in the future provide clear information on “each specific advertisement presented to each individual recipient”, including “meaningful information directly and easily accessible from the advertisement about the main parameters used to determine the recipient to whom the advertisement is presented and, where applicable, about how to change those parameters”.

Most obligations bearing on companies subject to the Digital Services Act will start to apply on 17 February 2024. However, all but small online platforms and search engines will be required to publish information on the usage of their services (Statement) on their website, with an initial Statement to be published by 17 February 2023 at the latest. Intermediaries designated as “very large online platforms” or “very large online search engines” by the EU Commission will need to comply with most of their new obligations from four months after being notified of their “very large” status.

New US / Aus cross-border data access regime

Jul 12 2021

By Cameron Abbott, Warwick Andersen and Jacqueline Patishman

The Telecommunications Legislations Amendment (International Orders) Bill 2020 has just cleared both houses of parliament. The new bill establishes a reciprocal cross-border data access regime between the United States and Australia which will allow for cross-border communications between foreign governments for national security and law enforcement purposes.

Victorian Government QR Code Service now compulsory for all workplaces and businesses

Jun 11 2021

By Cameron Abbott, Rob Pulham and Jacqueline Patishman

All Victorian workplaces businesses and venue operators must now use the free Victorian Government QR Code Service (or use a third-party system that links back to the government’s interface) to meet their contact tracing obligations.

May 02 2021

By Cameron Abbott, Michelle Aggromito, Jacqueline Patishman and Emily Gamaroff

In a bid to maintain stability in the Indo-Pacific region, Australia has pledged $37.5 million to bolster the security and development of critical technology in neighboring countries as part of its updated International Cyber Engagement Strategy. The funding aims to promote the resilience of critical technologies in Southeast Asia and to support Australia’s Pacific neighbours by improving online safety, counter misinformation and to fight cybercrime.

No News is Bad News! Big digital platforms flex their influence to no avail.

Mar 03 2021

By Cameron Abbott, Michelle Aggromito and Jacqueline Patishman

After severe criticism from the Australian government and others, Facebook has reversed its initial response to the controversial news media code of banning all Australian news on its platform, now stating that news and key pages concerning public health and government will be restored (although it has not provided a deadline for when this will occur).

“Totally Clueless”: Dating app Grindr reported for breach of privacy rules

Jan 24 2020

By Cameron Abbott, Max Evans and Florence Fermanis

Dating apps, for many young people, are a fact of life. Meeting someone these days in real-life rather than through a simple swipe right appears to have become the exception, belonging more to any number of 90s teen “romcoms” than it does to real life.

According to an article by Reuters however, in recent times dating app Grindr has been the subject of a complaint by the Norwegian Consumer Council (NCC) in relation to a breach of privacy rules as set out in the European Union’s General Data Protection Regulation, implemented in 2018.

You Can’t Throw the (Face)Book at Them: Affected Users Unable to Pursue Damages Claim against Facebook

Dec 23 2019

By Cameron Abbott, Max Evans and James Gray

A US federal judge has ruled that the 29 million Facebook users affected by the September 2018 data breach may not seek damages as a remedy, but can only pursue the enforcement of better security practices at Facebook, according to a report by Reuters. Judge Alsup of the US District Court stated that Facebook’s repetitive losses of users’ privacy indicated a long-term need for supervision, which comes in addition to prior judgment which indicated that Facebook’s views about user’s privacy expectations were “so wrong”.

AI (Adverse Inferences): AI Lending Models may show unconscious bias, according to Report.

Aug 30 2019

By Cameron Abbott and Max Evans

We live in an era where the adoption and use of Artificial Intelligence (AI) is at the forefront of business advancement and social progression. Facial recognition technology software is used or is being piloted to be used across a variety of government sectors, whilst voice recognition assistants are becoming the norm both in personal and business contexts. However, as we have blogged previously on, the AI ‘bandwagon’ inherently comes with legitimate concerns.

This is no different in the banking world. The use of AI-based phishing detection applications has strengthened cybersecurity safeguards for financial institutions, whilst the use of “Robo-Advisers” and voice and language processors has facilitated efficiency by increasing the pace of transactions and reducing service times. However, this appears to sound too good to be true, as according to a Report by CIO Drive, algorithmic lending models may show an unconscious bias.

Facebook fined £500,000 over Cambridge Analytica scandal

Jul 13 2018

By Cameron Abbott and Sarah Goegan

The UK Information Commissioner’s Office (ICO) has issued a notice of intent to levy a £500,000 fine against Facebook for breaches of the UK’s Data Protection Act 1998. The ICO found that Facebook failed to protect its users’ data and be transparent about how that data was being harvested. This failure, ICO said, did not enable users to understand how and why they may be targeted by a political party or campaign.

The fine comes as part of a larger investigation by ICO into misuse of data in political campaigns, and responds to the highly publicised allegations that Cambridge Analytica used data obtained from Facebook to target voters in the 2016 US presidential election.

Proposed anti-terror laws to give law enforcement access to personal data

Jun 12 2018

By Warwick Andersen, Rob Pulham and Sarah Goegan

Last week, the Australian Government announced that it would propose new anti-terror laws that force telecommunications and multinational tech companies to give law enforcement agencies access to encrypted data of suspected criminals and terrorists.

Cyber Security Minister Angus Taylor said the laws would give police, intelligence and security agencies the ability to bypass encryption on messaging (such as private messages sent on Whatsapp and Facebook), phone calls, photos, location and apps.

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