Public Affairs Roundup - December 2009

1.       Next Council Presidency – Spain  From the 1st January 2010, Spain will hold the rotating EU Council Presidency for 6 months.  The Spanish Presidency presented last week its working plan and priorities, such as the implementation of the Lisbon treaty, the review of the Data Protection Framework, the Consumer Rights Directive, etc. Spain will also focus on producing a work plan for the implementation of the Stockholm Programme in the Area of Justice, Freedom and Security.  

2.       Commission releases study on future of the Ubiquitous Information Society The European Commission published a new study on the future of information society, assessing the impact of predicted technology trends currently shaping the emergence of the ‘Ubiquitous Connected Society’. The study makes suggestions for policy considerations for the post i2020 strategy, recommending that internet be kept open to competition, innovation and user choice. The report also identifies some main trends in technology which will underpin the future information society, including: the convergence of communications infrastructures, human-computer convergence, and the development of the internet itself as an intelligent actor through web 3.0. The Commission also identified several issues for investigation, including privacy, and internet openness and neutrality.  http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=5448 

3.       Users’ rights to be focus of European digital strategy  In 2015, the European Commission’s strategy for the future of the digital economy, is set to provide a key role for the protection of users’ rights, according to current EU plans. The creation of an effective consumer-friendly single market for online services is likely to be the first pillar of the action plan, as foreseen by the outgoing Information Society Commission Viviane Reding. The strategy, which is due to be presented in spring 2010, also comes in response to a report on the digital agenda currently being drafted in the European Parliament, which mentions rights as one of its key messages and puts the user at the centre of digital policy. The report is expected to be adopted by MEPs in March.  The Spanish Presidency of the EU is also set to launch a digital agenda, known as the ‘Granada Strategy’, at the end of April 2010. The strategy’s main focus will be on a charter of ICT users’ rights, underlining online rights such as online privacy and protection of minors, as already foreseen in EU legislation. Debate is likely to ensue over plans to include the right to use VoiP services on mobile phones, which may be included in the charter.   

4.       Telecoms Council meets to agree on new digital strategy for Europe  On 18 December 2009, the Telecoms Ministers of all EU Member States met at the Telecoms Council in Brussels to reach a conclusion on priorities for a new European digital strategy in 2020. The main items on the agenda are: Post-i2010 strategy: adoption of Council conclusions following a policy debate, a collaborative European approach on network and information security: adoption of a Council Resolution, and Digital dividend: adoption of Council conclusions.  http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/560&format=HTML&aged=0&language=EN&guiLanguage=nl 

5.       EU: BEUC outlines priorities for the new Commission BEUC, the European Consumers’ Organisation, published the Consumer Book 2009-2014 “A guide for European Commissioners towards a more consumer friendly Europe”, which contains the priorities identified by BEUC’s 43 members as key areas to be addressed by the next Commission. 

Marketing to children

• Propose an EU wide Regulation to restrict the advertising and marketing of high fat, sugar and salt food and drinks to children;
• Ensure such a regulation to cover all media i.e. ‘traditional’ – such as television and magazines, and ‘new’ media which covers internet and mobile advertising etc;
• Ensure such a Regulation covers children up to the age of 16. 

Data protection and privacy

• Follow-up the previous Commission European Digital Agenda by concrete proposals;
• Impose transparency, consumers’ control and respect of consumers’ choice online in the use of new technologies likely to have an impact on consumers’ privacy;
• Foster “privacy and security by design” i.e. have a high level of privacy and security to be the default setting for digital products;
• Put in place a general obligation to inform/notify consumers of any violation of security that compromises their personal data (‘horizontal breach notification’);
• Give consumers access to efficient complaint and redress mechanisms in case their personal data have been compromised. 

Consumer Rights Directive

• Adopt a more flexible attitude in relation to the type of harmonisation that is applied and support a “mixed harmonization” approach using full harmonisation for certain limited issues only;
• Undertake consumer research to find out what changes are needed to encourage European consumers to engage more in cross-border transactions and introduce the respective amendments into the proposed directive;
• Develop clear criteria for applying full harmonisation in the field of consumer legislation based on the following conditions:
 o full harmonisation should only apply to technical and/or cross-cutting issues (such as the length of the withdrawal period, the conditions to exercise it, certain definitions such as the definition of a consumer and a trader, for example);
 o its application must not result in a decrease of the level of consumer protection, but is set at a truly high level of protection;
 o the scope of the fully harmonised field is clear from the text of the directive so that legal certainty is provided.
• Modernise existing consumer legislation by adapting it to the challenges of digital products and introducing the concept of sustainability into consumer contract law. 

Intellectual Property Rights (IPR)

• Adopt fair and proportionate regulatory measures for copyright enforcement ensuring that elementary consumer protection rights such as the right to fair licence conditions and the constitutional principles of respect for privacy, confidentiality of communication and due process are also respected;
• Follow-up the previous Commission’s European Digital Agenda with concrete proposals;
• Facilitate the multi-territory licensing of content online (music, games, films, books), currently hindered by the territorial nature of copyright, the lack of transparency in the management of copyright and the absence of rules on orphan works;
• Revise the current copyright framework with the aim of providing for the necessary flexibility in an environment of constant technological development while encouraging creativity and innovation in Europe. 

Financial Services

• Introduce binding measures increasing the quality of pre-contractual information provided to consumers;
• Introduce binding measures prohibiting unfair commercial practices not covered by UCP, in all financial services areas, and in particular tied and bundled products, hidden fees (bank accounts), promotional rates in mortgage credits, etc. 

Consumer Collective Redress

Adopt a European legislative proposal on consumer collective redress. In particular, such an instrument must encompass the following principles:
• Have a wide scope;
• Aim at obtaining compensation;
• Allow for legal standing of consumer organisations;
• Cover both national and cross-border cases;
• Give the court discretion over the admissibility of the claim;
• Cover identified, identifiable and non identifiable consumers;
• Be accompanied by information measures directed at consumers;
• Control out-of-court settlement;
• Allow for compensation to be distributed fairly;
• Foresee efficient funding mechanisms. 

Pharmaceuticals

• Develop, together with the Member States, an EU health information strategy that:
 o is based on an in depth assessment of consumers’ information needs;
 o promotes reliable sources of information (e.g. EMEA);
 o allows consumers to choose and compare medicines and different treatment options;
 o addresses inequalities in access to information between and within countries.
• Ensure that information about medicines is high quality, comparative and non promotional;
• Ensure that e-health solutions are patient centred and respect consumer privacy. 

Energy Labelling

• Make the energy labelling scheme more dynamic by regularly upgrading the classes of the label in accordance with technological progress and innovation;
• Keep the well-known A-G label’s layout for all product groups;
• Extend the scope of the energy labelling scheme to more energy-using products (e.g. computer monitors, vacuum cleaners, coffee machines) and energy-related products (e.g. windows);
• Take initiatives to regulate green energy offers, so that they do not mislead consumers as to their environmental benefits. To read the publication click here: http://www.beuc.eu/BEUCNoFrame/Docs/2/KHPDHKFDONFIBEKNIPLHBDIAPDBG9DWDBY9DW3571KM/BEUC/docs/DLS/2009-01002-01-E.pdf 

6.       EU: Parliament holds Privacy Meeting, discusses policies under new Lisbon Treaty MEP Sophie In’t Veld (The Netherlands, ALDE) held a meeting entitled “Future EU Privacy and Data Protection Policies under the Lisbon Treaty” on 2 December. MEPs, members of industry, associations attended the second in a series of meetings focusing on these issues. The guest speakers were: Marie-Hélène Boulanger, Head of the Data Protection Unit, JLS, European Commission; Peter Hustinx, European Data Protection Supervisor; and Christopher Kuner, Hunton and Williams, Chairman European Privacy Officers Forum. MEP In’t Veld began by noting the lack of support for a proposed Privacy Intergroup from some political groups, but that the Commission is preparing a framework for data protection. She pointed out that national data protection authorities are under resourced but that companies are appointing their own data protection supervisors. Marie-Hélène Boulanger explained that data protection is regarded as a fundamental right under the Lisbon Treaty, and the use of the co-decision procedure on Article 16 of the Lisbon Treaty. She predicted political action from the Commission in 2010, and mentioned the Stockholm programme and the need to have a globalised approach to data protection. According to Peter Hustinx (EDPS), Article 16 of the Lisbon Treaty provides a much more comprehensive and horizontal approach to data protection, and he called for the extension of this to areas such as transport, health and telecoms. Regarding technology, he argued for privacy by design and there should be more privacy in default settings. Christopher Kuner outlined the importance of data protection for online commerce and the scope for harmonization as provided by the Lisbon Treaty. In the ensuing discussion, MEP Carlos Coelho (Portugal, EPP) and Hustinx both commented on the lack of citizens’ awareness of rights to privacy. Kimon Zorbas, of IAB Europe commented that IAN Europe will be shortly releasing a survey which questioned 16,000 Europeans on data protection. He concurred that the public sector should be treated the same as the private sector, and that the Data Protection Directive is not the problem but how it is implemented. Finally, Ms Boulanger commented that the framework of the Data Protection Directive needs to be “Lisbonised” within 5 years.  The next meeting will be held on 27 January 2009 and Data Protection Day is on 28 January 2009. The proposed topic of the next meeting is public awareness and empowerment of data subjects.

7.       Commission gives further explanations on UCP Directive  On 4th December, the Commission has published a Guidance on the Implementation / Application of the Unfair Commercial Practices Directive. The document does not constitute a formal interpretation of community law and does not have formal legal status. In the event of a dispute, the ultimate responsibility for the Directive's interpretation lies with the Court of Justice of the European Union. The aim is to provide guidance on the parts of the Directive perceived to be problematic; in order to ensure coherent implementation across the EU. Two main categories of unfair commercial practices – “misleading” and “aggressive” practices – are described in greater detail.  

The guidance refers to social media such as blogs and social networking sites which have been used for hidden commercial practices. The document also refers to other incidences of traders posing as consumers. The document also refers to price comparison websites, and states that commercial practices such as combined or tied offers, discounts, price reductions, promotional sales, commercial lotteries, competitions, and vouchers fall within the scope of the Directive. It also states that financial services fall under the scope of the Directive; although the full harmonisation principle does not apply in this case. National rules on commercial practices, including marketing and advertising, regulating the protection of human dignity, the prevention of sexual, racial and religious discrimination, or the depiction of nudity, violence, anti-social behaviour are not covered by the Directive.

The document highlights self regulatory mechanisms and clarifies the role of code owners and self regulatory bodies, placing responsibility on traders to comply with commercial codes of conduct. By June 2011, the European Commission plans to submit a report on the Directive's application to the European Parliament and the Council. http://ec.europa.eu/consumers/rights/docs/Guidance_UCP_Directive_en.pdf  

8.       Chair of Article 29 group: “Privacy needs to be respected” The Chair of the Article 29 Working Group on Data Protection, Alex Turk, was the key speaker in an event organised by European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) about data protection and privacy. Mr. Turk presented his thoughts about the main issues facing the industry and announced that he will not ask for a second mandate, due to insufficient resources. He emphasised the need to educate the next generations to respect privacy and called on national governments to reconsider enforcement powers for Data Protection Authorities. The members of LIBE showed their support to Mr. Turk’s efforts and called for immediate action to ensure an appropriate level of resources for the DPAs.  

9.       OECD conference: Strengthening consumer protection online The Organisation for Economic Development (OECD) held a conference on December 8-10 entitled “Empowering E-consumers: Strengthening Consumer Protection in the Internet Economy”. Key speakers at the conference included OECD Secretary-General Angel Gurría, US Secretary of Commerce Gary Locke, FTC Chairman Jon Leibowitz and US Ambassador to the OECD Karen Kornbluh. Representatives from industry included Microsoft, eBay, Google, Facebook, Intel, Wells Fargo and Vivendi.  The conference focussed on a Background OECD Report that identifies key issues and trends regarding consumer trust in the Internet economy.  Key issues were difficulties in enforcement, copyright, privacy and security concerns, children on-line and online advertising. Privacy and security issues were discussed in terms of users’ preferences and social networking sites. Discussion regarding children on-line included the fact that many OECD countries do not have laws and regulations which address privacy issues involving children, with the exception of the US, while aggressive advertising and age identification were also noted. One of the other key concerns was behavioural advertising.   

10.   EDPS: Advantages of new Agency for large-scale IT systems – Definitions for its activities needed The European Data Protection Supervisor (EDPS) published on 8th December his suggestions about the new legislation for the establishment of an Agency responsible for operation management of large scale information technology (IT) systems in the area of freedom, security and justice. Peter Hustinx stated that “the creation of an Agency must be based on legislation which is unambiguous about the competences and the scope of activities of the Agency”. The EDPS asks the legislator to define the scope of Activities of the Agency and to define if it will be limited to data systems or will be expanded into other areas. http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/PressNews/Press/2009/EDPS-2009-14_Agency_large-scale_IT_systems_EN.pdf