UK law
CMA launches court action against Emma Sleep to protect UK consumers
Back in 2022, the CMA opened an investigation into Emma Sleep over concerns that some of its online sales practices, such as discounts and urgency claims, including countdown timers and high demand prompts, may mislead consumers. The CMA called on Emma Sleep to make changes and agree undertakings to ensure its compliance with consumer protection laws. The CMA says that Emma has failed to take the necessary action to address all the CMA’s concerns relating to reference pricing. As a result, the CMA has now launched court action. Emma can still agree to change its practices by consenting to an order or giving undertakings to the court before the case is heard. It is for the court to decide on the date for the hearing. The CMA is monitoring sales practice across the sector and this action is part of an ongoing programme of consumer enforcement work focused on so-called “Online Choice Architecture”. This aims to tackle potentially harmful online selling practices, including pressure selling tactics such as urgent time limited claims. Under this programme, the CMA has secured formal changes to the business practices of Simba Sleep. These included ensuring that any “was” price is genuine, that is, that a sufficient volume of product was sold at that price before using it as a “was” price. From April 2025 the CMA expects to have the power to decide itself whether consumer law has been broken, and to fine companies up to 10% of their global turnover, if appropriate. Firms will have the right to appeal the CMA’s decision to the courts.
Ofcom makes statement on transfer of PRS regulation from PSA to Ofcom
Ofcom has announced how it will transfer responsibility for the day-to-day regulation of premium rate services (PRS) from the Phone-Paid Services Authority (PSA) to Ofcom. Historically, the PSA has been designated as day-to-day regulator for the PRS market, with Ofcom performing a “backstop” regulatory function. Ofcom has set out its decision and the next steps to ensure a smooth regulatory transfer of the PSA to Ofcom. On 1 February 2025, Ofcom will assume day-to-day responsibility as regulator and enforcer of PRS regulation. On this date, Ofcom will withdraw approval of the PSA’s current Code of Practice (known as Code 15). In its place, it will introduce its own set of rules via the Regulation of Premium Rate Services Order 2024 SI 2024/1046 which is made under section 122 of the Communications Act (PRS Order). This will retain the key principles and outcomes of the current regulatory framework. Ofcom’s General Conditions contain several references to the PSA and its Code of Practice that will no longer be relevant after 1 February 2025. Therefore, it is consulting on proposals to modify the General Conditions to remove references to the PSA and its Code of Practice so that they are aligned to the future regulatory framework for PRS. The consultation ends on 25 November 2024. The PRA has issued guidance on the changes.
Internet Television Equipment Regulations 2024 made
The Internet Television Equipment Regulations 2024 SI 2024/1056 have been made. They specify the descriptions of the apparatus which are ‘internet television equipment’ under the prominence regime in Part 3A of the Communications Act 2003 as inserted by Part 2 of the Media Act 2024. They come into force on 14 November 2024. They also provide that smart televisions and streaming devices are internet television equipment. The Department for Culture, Media & Sport has also published a policy statement which sets out the categories of TV devices to be considered as internet television equipment for the new prominence framework.
UKIPO launches one-stop SEPs Resource Hub
The UKIPO has launched a Standard Essential Patents (SEPs) resource hub for businesses in the UK seeking guidance on navigating this often-complex ecosystems. It is widely accepted that SEPs are of growing importance to the UK economy, as they enable the development and implementation of innovative technologies across key sectors by ensuring that technologies are accessible and interoperable. However, it is known that businesses large and small can face challenges in relation to the licensing of SEPs. These challenges may include knowledge and information gaps between SEP holders and SEP implementers, concerns around a lack of transparency, and around the effective use of dispute resolution services. The Hub aims to help businesses improve their understanding of the SEPs ecosystem. It provides guidance and highlights other resources to help them navigate this ecosystem more confidently.
Ofcom calls for evidence on how researchers access information from regulated online services
Ofcom has called for evidence from researchers who access information from online services, to understand how it is obtained, used, and shared. Under the Online Safety Act 2023, Ofcom is required to report on how independent researchers access information about online safety matters from providers of regulated services. Several platforms have established mechanisms to share information with researchers and the public, but these methods vary across services. Ofcom is specifically seeking information about how, and to what extent, independent researchers currently access information from providers of regulated services; the challenges that currently constrain information sharing; and how greater access to this information might be achieved. Ofcom would also like to hear from researchers about how they have overcome information sharing constraints in areas other than online safety, and any positive examples of effective data governance or data-sharing mechanisms that are already being used. The information gathered will be used to inform Ofcom’s published report. The consultation ends on 17 January 2025.
EU law
European Commission consults on draft Delegated Regulation on data access for research
The European Commission is consulting on the draft Delegated Regulation on data access for research. The new framework for vetted researchers’ access to data from very large online platforms and very large search engines is a key measure of the Digital Services Act, to increase platforms’ transparency and accountability. The Commission is to adopt delegated acts to further specify the conditions under which sharing of data should take place and, the purposes for which the data may be used and relevant procedures, considering the rights and interests of those involved and, if necessary, independent advisory mechanisms.
European Commission opens formal proceedings against Temu under the Digital Services Act
The Commission has opened formal proceedings to assess if Temu may have breached the DSA. The investigation will focus on the systems Temu has in place to limit the sale of non-compliant products in the EU. Among other things, it concerns systems designed to limit the reappearance of previously suspended rogue traders, known to have been selling non-compliant products in the past, as well as systems to limit the reappearance of non-compliant goods. It will also consider the risks linked to the addictive design of the service, including game-like reward programmes, and the systems Temu has in place to mitigate the risks stemming from such addictive design, which could have negative consequences to a person’s physical and mental well-being. Next it will look at compliance with the DSA obligations linked to how Temu recommends content and products to users. This includes the requirement to disclose the main parameters used in Temu’s recommender systems and to provide users with at least one easily accessible option that is not based on profiling. Finally, it will consider the compliance with the DSA obligation to give researchers access to Temu’s publicly accessible data. The Commission will now carry out an in-depth investigation as a matter of priority. The opening of formal proceedings does not prejudge the outcome.
Irish Data Protection Commission fines LinkedIn Ireland €310 million
The Irish Data Protection Commission (DPC) has announced its final decision following an inquiry into LinkedIn Ireland Unlimited Company. The DPC launched the inquiry in its role as the lead supervisory authority for LinkedIn, following a complaint initially made to the French Data Protection Authority. The inquiry examined LinkedIn’s processing of personal data for behavioural analysis and targeted advertising of users who have created LinkedIn profiles (members). The decision concerns the lawfulness, fairness and transparency of this processing. The decision includes a reprimand, an order for LinkedIn to bring its processing into compliance, and administrative fines totalling €310 million. The DPC submitted a draft decision to the GDPR cooperation mechanism in July 2024, as required under Article 60 of the GDPR. No objections to the DPC’s draft decision were raised.
Global privacy bodies issue joint follow-up statement on data scraping
17 global data protection authorities including the ICO have issued a follow-up statement urging social media companies to strengthen protections against data scraping. It follows a joint statement from 2023 which set out the key privacy risks related to data scraping, as well as describing further expectations on organisations. These include compliance with privacy and data protection laws when using personal information to develop AI and large language models, regular review and updates to safeguarding measures, and ensuring that data scraping for commercial or socially beneficial purposes is done lawfully and complying with contractual terms.
New UK-EU Competition Cooperation Agreement agreed
The UK government and the EU have concluded technical negotiations on the UK-EU Competition Cooperation Agreement. The agreement is aimed at improving cooperation between the UK’s and EU’s competition authorities, allowing for greater dialogue between the CMA in the UK, the European Commission and the national competition authorities of the EU member states. The agreement aims to ensure more effective enforcement of global competition laws, helping to support businesses both in the UK and EU as well as protecting consumers. The UK and EU have negotiated the agreement with a view to signing it in the coming year. The UK parliament will be able to consider the agreement in detail once the text is published for scrutiny. The consent of the European Parliament will also be required.
