Smart entertainment, privacy and the media industry

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Dentons

[co-author: Francesco Armaroli]

Introduction

If you are looking forward to a future where you will be able to choose what the main character does next in a movie or TV series, that future has now arrived. In fact, some video on demand (VOD) platforms are pioneering a new form of immersive entertainment called “interactive entertainment”.

This is how it works in practice: viewers’ choices at specific points in time influence the narrative of the plot of what they are watching and lead to different personalized endings. From what music to play, to career decisions, from “killing” certain characters to travel destinations: viewers can choose everything.

All such interactions generate huge amounts of data processed through sophisticated technologies and analytics techniques for various purposes (targeted advertising, customer profiling, geo-location, parental blocks).

To achieve such purposes, broadcasters and VOD platforms need to comply with several pieces of law (privacy, audiovisual regulatory, minors’ protection, copyright enforcement: in this respect, see our general overview of the new EU Copyright Directive), some of which we will address in this post.

Interactive entertainment: main legal issues

  1. Privacy: it is unclear whether data protection laws extend to viewers interactions going that far in entertainment, although it is clear that interactive entertainment can amount to profiling. That said, smart devices are able to collect huge amount of metadata, so that electronic communications regulations could apply to such processing. In addition, viewers must be aware that they are subject to tracking and targeted profiling by means of detailed information notices and, where necessary, must consent to such processing.
  2. Consumer law: when it comes to viewers’ tracking via smart TVs, consumer law concerns include attempts to exploit cross-device and online-to-offline monitoring of viewers' preferences and choices by broadcasters and VOD platforms. This because such activity may lead to a more limited contents offering and reduce consumers’ choice without any prior representation.
  3. Data sharing: Any data sharing practice in interactive entertainment needs to be carefully evaluated. For instance, third parties providing audience-measuring services need to ensure that the data they collect has adequate guarantees in contracts. In addition, the risk that special categories of personal data (such as health-related data) may be under the spotlight without viewers actually knowing is of the utmost importance. In order to massively collect and transfer viewers’ personal data, carrying out a data protection impact assessment (pursuant to Art. 35 GDPR) is also advisable (and, depending on cases, even mandatory).
  4. Media (regulatory): this point is crucial, and it mainly depends on the actual implementation of the new text of Audiovisual Media Services Directive by Member States (which, among others, contain ad hoc provisions for video-sharing platforms: see also our article here). As a general remark, it should also be taken into account that, on 24 May 2017, the EU Regulation no. 2017/1128 regarding cross-border portability of online content services in the EU market has been eventually approved. Pursuant to this Regulation, providers of a pay online content service shall enable its subscribers being temporarily present in a Member State to access and use the online content service in the same manner as in the Member State of residence, including by providing access to the same content, on the same range and number of devices, for the same number of users and with the same range of functionalities.
  5. Copyright protection: The issue of protecting “interactive” features with autonomous IPRs is not new. For instance, the gaming industry has been fighting hard to see copyright laws around the world extended to the entirety of the computer code that creates the game and its characteristics, in the same way it protects the entirety of an artwork or a novel. As the “gamification” of entertainment expands to traditional TV programs and VOD platforms, the question is whether the “interactivity” may be protected in addition to the “traditional” copyright on the audiovisual work.

The approach of Italian regulators

Italian regulators have been keen to intervene on smart devices and interactive entertainment from different perspectives and points of view during the past years.

The position of the Italian Data Protection Authority (Garante per la protezione dei dati personali) is that viewers’ tracking and the display of targeted advertising by means of smart devices shall be subject to applicable privacy rules. This is confirmed under the GDPR and is likely to be increased under the forthcoming ePrivacy Regulation, which will guarantee a specific protection to metadata processing and profiling.

Similarly, the Italian Communications Authority (Autorità per le garanzie nelle comunicazioni) pointed out that smart TVs’ connection to computer and broadband networks enhance relevant break-in risks, such as illegitimate access to personal data and the surreptitious activation of the camera and/or motion sensors of which some models are equipped.

That is why the Authority believes it is necessary to implement transparency policies with regard to manufacturers, as well as a constant tracking of the software pre-installed in smart devices, in order to increase the privacy and security of their users.

The interactions between the two independent authorities in this business sector is particularly tight. This is the reason why recently one of the Italian Communications Authority Commissioner (Mr. Antonio Nicita) even proposed to merge the two authorities, in order to avoid various potential overlaps of the relevant functions. Such merge, according to the Commissioner, may allow Italian authorities to exercise “a more effective “bargaining” power and moral suasion vis-à-vis OTTs and global digital platforms”.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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