Belgian Court orders Facebook to stop tracking non-Facebook members

On 9th November 2015, an important decision was taken by the District Court of First Instance in Brussels in summary proceedings. The full judgment is not yet available, but there is a press release issued today by the Belgian Privacy Commission, summarizing the decision. A quick and dirty translation in English of this press release can be found here.

Facebook has to comply with the judgment by tomorrow or else pay a fine of USD 250,000 per day!

For the original Dutch language press release, click here.

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China’s new OTT rules

China’s State Administration of Press, Publishing, Radio, Film and Television (“SARFT”) has instructed several operators of OTT (‘Over the Top’) platforms to suspend their ‘Time Shifted over Cable’ services (TSoC) as well as their Catch-up TV services. SARFT is developing policies and regulations in respect of OTT services which were previously unregulated, in an attempt to bring those services under similar rules as those which apply to other platforms and thus to avoid unfair competition. The current action will not harm the business of online video on demand websites.

Last June, SARFT had already instructed the holders of WebTV licenses to take immediate action to stop the downloading of video content which has been published on the internet illegally by using a WebTV terminal device (the “Internet Box”).

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Retransmission in U.S. (Aereo)

On 25 June 2014, the Supreme Court of the United States decided in a case brought by a group of broadcasters against the operator of s distribution platform (Aereo). Aereo connects its subscribers to small individual antennas which are capable of receiving free over-the-air broadcast channels. The signals thus captured are simultaneously (with a small delay caused by proxy-caching) delivered to the subscribers on the basis of the Internet Protocol. Aereo did not ask the broadcasters and other rights owners for permission, as Aereo took the position that it did not itself “transmit or otherwise communicate a performance…of the [copyrighted] work…to the public”.

The Supreme Court, however, took the position that “these ‘behind-the-scenes’ technological differences do not distinguish Aereo’s system from cable systems, which do perform publicly”. Consequently, Aereo will need to obtain the permission from the broadcasters whose channels it delivers to its subscribers and of all other rightsholders; in practice, this means that Aereo will have to pay a licence fee to the rightsholders.

The decision contains important decisions on relevant definitions: What constitutes a ‘perfomance’? What constitutes a ‘public’.

In a dissenting opinion, Justice Scalia (joint by Justice Thomas and Justice Alito) takes the position that Aereo does not perform at all and that the Court’s majority “manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (‘looks-like-cable-TV’) that will sow confusion for years to come”.


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China Desk

X-Media Strategies can now also assists its clients in China. Producers, broadcasters and other content aggregators as well as operators of (mobile or fixed line) content distribution and e-commerce platforms who seek access to the Chinese market are invited to contact us.

China is about to overtake the U.S. as the world’s largest economy. At the same time, the Chinese internet and e-commerce markets are booming, MVNOs are being created and all these developments attract more and more foreign investment, especially after last year’s creation of the Shanghai Free Trade Zone.

Through our local partner, X-Media Strategies has excellent contacts with the Chinese government, universities, law firms and the industry.
X-Media Strategies offers the following services:

  • Feasibility studies
  • Market overviews
  • Legal guidance
  • Legal Opinions for foreign investment in the telecommunications and internet industry in China
  • Reports on relevant topics (access issues, data protection, copyright, etcetera)
  • Public and regulatory affairs assistance
  • Strategy development

Please feel free to contact our Amsterdam or Brussels office for further information.

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The processing of personal data: EP vote

This morning, the European Parliament voted on the European Commission’s proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). 621 Members voted in favour of the Regulation, as amended by some 200 amendments which had been suggested by Rapporteur Jan Albrecht. Only 10 Members voted against and 22 abstained.

For the industry there will be farreaching consequences. The processing of personal data without the express consent of an individual will no longer be allowed; moreover, individuals must be able to withdraw their consent in the same way as they gave it. In addition, individuals will have the right to obtain their personal data from entities who hold those data, in an interoperable electronic format which is used generally. Furthermore, individuals can demand that their personal data be erased, including those passed on to third parties.

The European Parliament insists that the EU privacy rules will apply universally, i.e. also if the personal data of an EU citizen are processed in a non-EU country. Courts in non-EU countries will not have the right to demand the transfer or disclosure of the personal data of an EU citizen.

See also the European Parliament’s press release (pdf).


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Cable in 2014

Today, the European Cable Congress started in Amsterdam.

Ms Caroline van Weede, Managing Director of Cable Europe, identified the following policy areas as key for 2014:

– copyright
– audiovisual
– open internet
– single telecoms market
– rollout of Next Generation Access networks (NGAs)

Cable Europe’s President (and member of the Liberty Global management team in Denver), Mr Manuel Kohnstamm added to this list by saying that ‘Privacy’ is a top 3 priority for cable as well as convergence between the cable and mobile industries.

Service developments which were mentioned in particular: recommendations – personalisation – storage – lots of VOD

Liberty Global’s CEO, Mr Mike Fries said that:

– Partnerships with broadcasters like RTL Nederland are extremely important;
– LGI has not been approached by Vodafone;
– LGI is an 80 billion dollar enterprise.

Mr Manuel Cubero, CEO of Kabel Deutschland, called upon regulators to be more cooperative and to assist the cable industry in its consolidation efforts, with a view to developing a strong and innovative industry in Europe.

Ziggo’s new CEO, René Obermann (former Deutsche Telekom) said that although bundling is an easy way to sell quadruple play (TV, voice telephony (fixed and mobile) and internet access), seamless data packages, single authentication and convergence are the future.

Some figures for Europe:

– 31 million subscribers to digital cable
– 25 million subscribers to analogue cable
– 74% of high speed internet in Europe delivered by cable

See also this infographic by Cable Europe (pdf).


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