The EU-U.S. safe harbor agreement for transfer of personal data is invalid and should be suspended, European Court of Justice (ECJ) Advocate General (AG) Yves Bot said Wednesday in an advisory opinion. The European Commission, which is scurrying to renegotiate safe harbor with U.S. officials, said it's "confident" of a "positive conclusion" soon. Industry lawyers warned that the opinion, if adopted by the ECJ, could spell trouble for American companies seeking to do business in Europe. Privacy advocates, however, said it could signal the beginning of a better data protection system. The ECJ isn't bound by its advocates' opinions but generally follows them.
Dugie Standeford
Dugie Standeford, European Correspondent, Communications Daily and Privacy Daily, is a former lawyer. She joined Warren Communications News in 2000 to report on internet policy and regulation. In 2003 she moved to the U.K. and since then has covered European telecommunications issues. She previously covered the U.S. Occupational Safety and Health Administration and intellectual property law matters. She has a degree in psychology from Duke University and a law degree from the University of Tulsa College of Law.
A study of the impact of wireless deals on consumer prices and operator investment in Europe will contribute to a deeper discussion of the issues, said stakeholders in interviews last week, but they differed on the report's import. The report by the Centre on Regulation in Europe (CERRE) recommended European competition authorities vetting mergers and acquisitions address the fundamental trade-off between higher prices for users and increased investment. Some have criticized M&A for leading to higher prices for wireless consumers in Europe (see 1508030002), and the TeliaSonera/Telenor Danish carrier deal was abandoned earlier this month amid regulatory scrutiny (see 1509110010).
The decision by Danish carriers TeliaSonera and Telenor to abandon their proposed combination may have ramifications for other pending mergers and acquisitions, telecom consultants and attorneys told us Friday. The wireless companies announced that day the withdrawal of their merger because they weren't able to satisfy European Commission antitrust concerns. Competition Commissioner Margrethe Vestager appears to be setting a transaction standard different from her predecessor's by requiring countries to have four mobile network operators, rather than mobile virtual network operators (MVNOs), to ensure competition, experts said. Others downplayed the impact of the scotched deal on European M&A.
Google rejected European Commission antitrust concerns about its comparison shopping search processes, calling the EC's preliminary conclusions "wrong as a matter of fact, law and economics." In a Thursday posting on its Europe blog, Google said its advertising format for price comparisons "demonstrably improves ad quality and makes it easier for consumers to find what they're looking for." FairSearch Europe Legal Counsel Thomas Vinje, however, said the EC's assessment of Google's dominance in the price comparison shopping market is correct and based on well-established legal principles. The Initiative for a Competitive Online Marketplace (ICOMP) accused Google of being "in denial" about the "devastating impact" its self-preferencing has on the online market.
There's a growing realization that Europe's right to be forgotten (RTBF) will affect U.S. Internet users and companies, we found. Earlier this month, experts agreed at an event that American companies may need to comply with the evolving European standards (see 1508130052). And in recent interviews, privacy and reputation management lawyers said effects of the growing body of court decisions, guidelines and regulatory actions on RTBF are coming to American shores.
A wave of mergers and acquisitions in the European telecom market is raising concerns about competition and service prices, analysts, regulators and attorneys said. Questions include how many mobile operators are needed for a competitive national market; whether M&A is necessary to spur investment; and whether European Commission antitrust decisions are undermining national regulators, they said. Some see the EC as moving to crack down on M&A through conditions, possibly benefiting consumers by averting price increases that consolidation often brings. Others contend deals eventually benefit customers by boosting companies' network investments.
Europe is humming with discussions about possible 5G technologies, standards and spectrum requirements, even as many don't know what the technology is, experts said in recent interviews. Industry groups, researchers, telecom regulators and standardization bodies have launched a flurry of 5G-related projects five years before the technology is even expected to be deployed (see 1506030055), Real Wireless Technology Director Simon Saunders said. It's striking that people are so excited about 5G, he said. LTE is still 10 years away from the peak of its rollout and take-up, and yet it's 5G that's being hyped, he said. That enthusiasm may need to be dampened lest it hold back LTE, he said.
Talks on a World Intellectual Property Organization treaty to update broadcasting protections ended Friday without consensus but with a request for draft text on which substantive negotiations could later take place. Delegates at the Standing Committee on Copyright and Related Rights (SCCR), however, rejected a proposal that the WIPO General Assembly order the committee to speed up work on the treaty, which has been under discussion for about 16 years, to allow for a diplomatic conference in 2017. Delegates are still headed toward an accord that covers traditional broadcasters and cablecasters, but not webcasters who solely stream their signals, said WIPO Copyright Law Division Director Michele Woods in an interview.
EU governments and lawmakers forged a deal on net neutrality rules in the wee hours of Tuesday, the Council said in a statement. The text wasn't available, but the Council said it will require that access providers treat all traffic equally. Reasonable traffic management will be allowed, as will blocking or throttling in limited circumstances such as to counter cyberattacks and prevent traffic congestion, it said. Agreements for services that require a specific quality level will be permitted, but providers will have to ensure the general quality of Internet access, it said. The draft agreement, which also includes new rules on mobile roaming fees, must be approved by the Council and European Parliament. It won cheers from one telecom regulator and Internet telephony services providers, and less enthusiasm from digital rights activists and consumers.
A European Court of Human Rights ruling holding Internet news portals liable for user comments could chill online freedom of expression in Europe and elsewhere, said free speech advocates and a media lawyer in interviews after Tuesday's decision. Delfi AS v. Estonia binds only the 47 Council of Europe member countries, but it could inspire nations that haven't regulated in that area to follow the ECtHR's lead, said Gabrielle Guillemin, senior legal officer for Article 19, which works to combat censorship. It's a "significant decision" that may lead to a more cautious approach even outside Europe to content and intermediary liability, said Bermans (U.K.) communications attorney Steve Kuncewicz.