UK
Spreadex and Sporting Index merger raises provisional competition concerns
Last year, Spreadex acquired the “retail business” of Sporting Index from Sporting Group Holding Limited (Sporting Group). Spreadex and Sporting Index both provide fixed odds betting and sports spread betting to customers based in the UK. The CMA reviewed the acquisition and decided that a Phase 2 investigation was needed. It has focused on licensed online sports spread betting, where Sporting Index and Spreadex are the only two operators. The investigating panel provisionally considers that the merger has substantially lessened, or could substantially lessen, competition in the supply of licensed online sports spread betting services in the UK. The panel provisionally found that the deal would remove the only other licensed provider in the UK, and suppliers of other betting services, such as fixed odds betting and financial spread betting, only provided a weak constraint on the new business. The panel is provisionally concerned that this could lead to worse user experience, a more limited range of products and/or higher prices than would otherwise have been the case without the transaction. The panel is now consulting on possible remedies for this substantial lessening of competition, including whether Spreadex should sell a business made up of all or some of the Sporting Index assets that it acquired as part of the merger, and whether it should also have to include any Spreadex assets in the sale.
CMA announces investigation into Amazon/Anthropic partnership
The CMA is considering whether it is or may be the case that Amazon’s partnership with Anthropic has resulted in the creation of a relevant merger situation under the merger provisions of the Enterprise Act 2002 and, if so, whether the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the UK for goods or services. It has announced that it will be carrying out a formal investigation. The end of the initial period and the deadline for the CMA to announce its decision whether to refer the merger for a Phase 2 investigation is 4 October 2024.
ICO issues statement in response to Google announcing it will no longer block third party cookies in Chrome
The ICO has issued a statement in response to Google announcing that it will not longer block third party cookies in Chrome. It says “We are disappointed that Google has changed its plans and no longer intends to deprecate third party cookies from the Chrome Browser. From the start of Google’s Sandbox project in 2019, it has been our view that blocking third party cookies would be a positive step for consumers. The new plan set out by Google is a significant change and we will reflect on this new course of action when more detail is available. Our ambition to support the creation of a more privacy friendly internet continues. Despite Google’s decision, we continue to encourage the digital advertising industry to move to more private alternatives to third party cookies – and not to resort to more opaque forms of tracking. We will monitor how the industry responds and consider regulatory action where systemic non-compliance is identified for all companies including Google.”
UK joins global digital trade agreement
The UK and 90 other countries have finalised the E-Commerce Joint Initiative at the World Trade Organization aimed at making trade faster, cheaper, fairer and more secure. Once implemented, the agreement will commit all participants to the digitalisation of customs documents and processes. The signatories also commit to recognising e-documents and e-signatures, reducing the need for businesses to physically sign contracts and post them around the world. The agreement also commits signatories to putting in place legal safeguards against online fraudsters and misleading claims about products. Attention now turns to working with WTO partners to incorporate the agreement into the WTO legal framework. Once incorporated, UK ratification will take place. The European Commission has also welcomed the agreement.
ASA issues reminder that joint partnerships on Instagram should clearly identify ads
The Advertising Standards Authority has published an article on joint partnerships on Instagram and the reasons for it upholding complaints about ads from TALA, an activewear company owned by Grace Beverley. Four TikToks were posted by Beverley and two Instagram reels were jointly published by both Beverley and TALA. The ASA took the view that they were not obviously identifiable as ads. There was some criticism of the decision, which the ASA seeks to resolve with its article. It says that when an influencer posts an ad, it needs to be immediately clear and obvious to the person who sees/hears and interacts with it that they are being advertised to. Importantly, and to allay some of the concerns expressed by commentators in and around this ruling, the ASA was not saying that any content posted by an influencer is an ad or must be labelled as such. When there is editorial control from an advertiser or a clear commercial interest, including when someone owns a brand, and it is not clear from context that people are seeing an ad, that is where the ASA needs to see proper disclosure.
IPO publishes guidance about assessing patent applications involving artificial neural networks
The Intellectual Property Office (IPO) has issued statutory guidance regarding the changes on the way it assesses inventions involving artificial neural networks (ANNs) for excluded subject matter. It has published the guidance because of the Court of Appeal’s decision in Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd [2024] EWCA Civ 825. The Court held that that an ANN is a computer and that, whether it is implemented as hardware or software, the weights and biases of the ANN are a program for a computer and are therefore within the purview of the “program for a computer” exclusion. The guidance says that patent examiners should treat ANN-implemented inventions like any other computer implemented invention for the purposes of section 1(2). They should also apply the Aerotel approach to assess whether an ANN-implemented invention makes a contribution which is technical in nature
Patents Court considers international SEP patent pool FRAND jurisdiction
The Patents Court has issued its ruling in Tesla Inc and another v IDAC Holdings Inc and others [2024] EWHC 1815 (Ch). Interdigital were a group of US companies, owning Standard Essential Patents (SEPs) regarding 5G. They and various other SEP co-owners have agreed to join a patent platform to license them to use in the automotive industry. The fourth defendant Avanci ran the platform but did not own any SEPs itself. Tesla was not happy with the terms of the 5G licence that Avanci had offered. It asked the court to make declarations of invalidity and non-essentiality and to revoke three UK patents. InterDigital and Avanci challenged the court’s jurisdiction to hear the claim. Alternatively, InterDigital applied to strike out the claim to the extent there was jurisdiction over it. The judge took the view that Tesla’s claims failed. The ruling meant that the court did not have jurisdiction over the licensing claims. It also meant that they should not be struck out. The court said that the patent claims against InterDigital were unlikely to proceed and therefore stayed them.
DSIT Secretary of State commissions AI Action Plan
The Secretary of State Department for Science, Innovation and Technology has commissioned an Action Plan to set out a roadmap for the UK government to capture the opportunities of AI to enhance growth and productivity and create tangible benefits. It aims to build an AI sector that can scale and be competitive globally; adopt AI to enhance growth and productivity, and support government project delivery; use AI in government and boosting take-up in all parts of the public sector and the wider economy and strengthen the enablers of artificial intelligence adoption, such as data, infrastructure, public procurement processes and policy, and regulatory reforms
EU
EU and Singapore conclude negotiations for landmark Digital Trade Agreement
The EU and Singapore have concluded negotiations for a Digital Trade Agreement (DTA). This deal is the first EU agreement of its kind, reflecting the EU’s aspiration to be a global standard-setter for digital trade rules and cross-border data flows. The DTA will complement the 2019 EU-Singapore Free Trade Agreement, aiming at connecting both economies further and benefiting businesses and consumers that want to engage in digital trade. It will also provide binding rules aimed at building consumer trust, ensuring predictability and legal certainty for businesses, as well as removing and preventing the emergence of unjustified barriers to digital trade. In addition, it aims to unlock new economic opportunities while ensuring a safe online environment. The EU and Singapore will now follow their respective procedures to work towards formal signature and conclusion.
European Commission issues report on GDPR
The European Commission has published its latest report on the GDPR. The report finds that the GDPR is delivering effectively for individuals and businesses, ensuring strong protection for data subjects and risk-based obligations for controllers and processors. It also outlines some priority areas to improve the application of the GDPR, such as a swift adoption of the Commission’s proposal for a GDPR Procedural Regulation to ensure robust enforcement with quick remedies. It also calls for proactive support from data protection authorities, especially for SMEs; a consistent interpretation and enforcement of the GDPR across the EU, and effective cooperation between regulators at national, EU and international levels to guarantee a coherent application of the growing body of EU digital rules.
European Commission consults on guidelines to protect children under Digital Services Act
The Digital Services Act aims to make the online world safer for children and it requires providers of all online platforms accessible to them to put in place measures to ensure a high level of privacy, safety and security as part of their service. It also empowers the Commission to issue guidelines to help providers of online platforms apply this high level of protection for minors. The Commission intends to adopt these guidelines in the first half of 2025. The guiding principle of this work is the rights of the child, and the best interest of the child should be a central consideration when designing and deploying online platforms’ products, services and policies. In line with the general approach of the DSA, the Commission proposes that the guidelines take a risk-based approach to online harm. This means that online platforms that are accessible to minors should regularly conduct a child specific impact assessment that is structured around the “5C” typology of risks, namely risks to minors from content, conduct, contact and consumers as well as cross-cutting risks. Identified risks should be addressed in a reasonable, proportionate and effective manner. Measures to keep minors safe will vary from one online platform to another due to their different nature. The consultation ends on 30 September 2024.
TikTok will permanently withdraw TikTok Lite Rewards programme from the EU to comply with DSA
The Commission has made TikTok’s commitments to permanently withdraw TikTok Lite Rewards programme from the EU binding. These commitments were aimed at addressing the Commission’s concerns in its proceedings opened on 22 April and aim to ensure compliance with the Digital Services Act. Tiktok made the following commitments: a commitment to withdraw the TikTok Lite Rewards programme from the EU, permanently; and a commitment not to launch any other programme which would circumvent the withdrawal. The Commission has now made these commitments legally binding, meaning that any breach of the commitments would immediately amount to a breach of the DSA and could therefore lead to fines. With this decision, the Commission is closing the formal proceedings opened against TikTok on 22 April.
European Commission seeks feedback on draft antitrust Guidelines on exclusionary abuses
The European Commission is consulting on draft Guidelines on exclusionary abuses of dominance. Article 102 of the Treaty on the Functioning of the European Union (TFEU) prohibits dominant companies from engaging in abusive behaviour, including behaviour that excludes competitors from the market. The presence of network effects, for instance in digital markets, can affect exclusionary abuses of dominance. The enforcement of Article 102 TFEU is key to ensuring that competition works effectively, that all businesses get a fair chance to compete and that consumers can reap the benefits of competitive markets. The draft Guidelines aim at reflecting the Commission’s interpretation of the EU courts’ case law on exclusionary abuses and the Commission practice. This aims to help increase legal certainty to the benefit of consumers, and businesses, as well as national competition authorities and courts. The Commission is currently planning to finalise the draft Guidelines on Exclusionary Abuses in 2025.
