July 1, 2022

TMT Bites Newsletter - 26th issue

Zdenek Kucera, Giangiacomo Olivi

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The 26th issue of the TMT Bites is devoted to e-commerce. We prepared an EU-wide questionnaire that will guide you through the implementation of three game-changing EU directives that will soon rewrite the rules for retail business. With further ambitious legislation on the horizon for online platforms and for gatekeeper companies in the EU, increased scrutiny of platforms is also expected in Turkey, where a draft bill imposing significant restrictions on online marketplaces has been announced. In Asia, China’s legislation is currently focusing on algorithmic recommendation technologies and an important ruling has been issued on the liability of an NFT trading platform for copyright infringements. Also in this issue, you will learn about “dark patterns” in online environments and the regulation of e-commerce in Brazil, South Africa and Indonesia.

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European Union

Omnibus Directive, Sale of Goods Directive and Digital Content Directive: A snapshot of local implementation

It has been quite some time since the EU introduced three new directives that significantly reshape the rules protecting consumers in the digital single market—the Omnibus Directive (Omnibus), Sale of Goods Directive (SGD) and Digital Content Directive (DCD). In cooperation with our TMT teams all around Europe and our partner law firm Sorainen, we have prepared a summary of the key changes introduced by each of the directives and an overview of the implementation process showing how different member states are handling the task at hand. In our questionnaire, we focused on the current legislative status of the implementing laws, the divergences in warranty periods prescribed for different categories of products and the most notable deviations found in the local laws.

You can access the full material here.

Digital Content Directive: The debate over data monetization

The Digital Content Directive (DCD) has recently been implemented in Italy. Among other things, the implementation reignited the debate over personal data monetization. Many commentators view the DCD as an opening to the practice of providing digital content or services in exchange for personal data instead of a price payment. However, data monetization is often seen as a threat to the fundamental right to the protection of personal data. In order to better assess the current positions on data monetization, we set out some examples of divergence in this respect.

Digital Markets Act, data monetization and digital advertising: three reasons to care

Although it would appear that no fewer than 10 000 online platforms operate in the EU, the digital market seems to be molded by just a handful of them. This raised concerns among the regulatory authorities in terms of transparency and fair competition. The Digital Markets Act, together with the upcoming Digital Services Act, forms a central part of the package proposed by the Commission to address such concerns, setting up specific obligations for the digital giants, the so-called gatekeepers (such as online intermediation services, online search engines, video-sharing platform services or web browsers).

Digital Markets Act and competition law: CJEU case law sheds light on risks of concurrent sanctions

The Digital Markets Act seeks to provide a framework to regulate gatekeepers’ behavior and prevent market failures before they become a reality. Such ex-ante regulation is unlike ordinary competition law, which normally allows only ex-post investigations and remedies. Could a company be punished for its anti-competitive practices under both legal regimes, or would that constitute double jeopardy?

Dark patterns in social media interfaces: An overview of the new EDPB guidance

Unfortunately, it is all too common in the online world that someone will try to manipulate you to make decisions you otherwise wouldn’t. One example of this is the use of “dark patterns” that can be found in almost every online environment, especially in social media. To address this issue, the European Data Protection Board has issued new guidelines on dark patterns in the context of GDPR.

New Turkish e-commerce draft bill: More restrictive than existing and upcoming EU regulations

The Ministry of Trade is currently working on a draft bill that amends the e-commerce law by regulating e-commerce marketplaces. The draft bill aims to protect e-commerce service providers from unfair practices of e-commerce intermediaries and to establish a fair and competitive environment among them that will benefit consumers. Although influenced by the EU’s Digital Markets Act, Digital Services Act and Platform-to-Business Regulation, the bill may include some aspects that are even more restrictive.

Mainland China adopts new regulation on algorithmic recommendation technologies

A new regulation in Mainland China that may have profound effects on the operation of e-commerce companies came into effect on March 1, 2022. It applies to entities using algorithm recommendation technologies to provide Internet information services within Mainland China, including any content decision algorithms in apps and websites. Most notably, the new regulation lays down the technical and organizational standards for the fair use of the technologies and introduces a new set of user rights.

Copyright infringement case ruling may stymie NFT development in China

In the context of the global convergence towards the metaverse, non-fungible token (NFT) technologies and exchanges are developing rapidly worldwide. Since NFTs are a new type of digital asset in China, no specific law or regulation has yet been developed to regulate transactions with them or for the related trading platforms. In April 2022, a court of first instance in China entered a judgment for the first NFT copyright infringement case, giving a structural reference for the analysis of similar cases and filling a blank in this area of law.

E-commerce in the US: A complicated landscape

Organizations conducting e-commerce in the United States (“US”) must be compliant with an increasingly complicated patchwork of laws and regulations. This article focuses on four areas of compliance: (1) data privacy; (2) automatic renewal disclosures; (3) accessibility; and (4) arbitration clauses and class waivers in the context of a terms of use or service.

E-commerce in Brazil: A brief overview of regulation from a consumer protection perspective

Consumer protection in Brazil is rather strictly regulated and consumer protection authorities are active in their enforcement actions, generally siding with the consumer. Knowing your rights and responsibilities as an e-commerce marketer is essential before doing business in Brazil. In this article, we provide a brief overview of some of the key laws and responsibilities to be aware of in respect of e-commerce activities.

Upcoming regulation of e-commerce in the Republic of South Africa

In addition to new legislation to combat cybercrime, South Africa is becoming increasingly active in crypto, with plans to introduce a new regulation of crypto-assets and potentially to roll out a central bank–issued cryptocurrency. Find out more about recent South African e-commerce developments in this article.

Indonesia’s draft law on data protection to bring clarity to regulation of data handling and e-commerce

To keep pace with the rapid advancement of technology and growing number of users of technology-based services in Indonesia, particularly in e-commerce industries, a stronger legislative framework is needed to protect personal data and ensure the public’s right to personal data protection. In response to this growing need, the legislator is now working on a draft Law on Personal Data Protection. Based on the GDPR, the bill includes international concepts not covered by current regulations, such as data controller, data processor or sensitive personal data.

Dentons Artificial Intelligence Guide 2022

Dentons’ Artificial Intelligence Guide offers insight into what is happening in the legal arena on the fast moving and topical matter of AI. Based on an online survey of 209 business leaders around the world, complemented by additional 698 responses to LinkedIn polls, it provides a view on the perceptions of businesses across all major industry sectors on the key opportunities and risks presented by AI. It also presents insights from Dentons lawyers on the legal and regulatory issues that businesses using AI will need to grapple with—both now and in the future, including contracts, governance, intellectual property, liability, and privacy.

Download the AI Guide here.

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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.