Category: public policy

HmbBfDI vs. WhatsApp: an Update

IPlens

In an order with immediate enforcement, Johannes Caspar, the Hamburg Commissioner for Data Protection and Freedom of Information (HmbBfDI), has prohibited Facebook Ireland Ltd. from further processing WhatsApp user data in Germany, if this is done for their own purposes. As part of the emergency procedure under Art. 66 GDPR already discussed on this blog, this measure will remain valid for three months in the respective territory. In light of this short time frame, the Commissioner’s aim is to refer this issue to the European Data Protection Board (EDPB) in order to find a solution on a European level.

In the last months, WhatsApp had requested their users to agree to the new terms and conditions of use and privacy by May 15, 2021. With the new privacy terms and conditions, WhatsApp would receive wide-ranging data processing powers. This applies, among other things, to the evaluation of location information, the transfer of personal data to third-party companies including Facebook and cross-company verification of the account. Furthermore, the companies’ legitimate interest for data processing and transfer is brought forth in a blanket manner – even with regard to underage users.

After hearing Facebook Ireland Ltd. – and notwithstanding a consent to the terms of use – the HmbBfDI believes that there is no sufficient legal basis for justifying this interference with the users’ rights and freedoms. This is especially true when considering that the data transfer provisions are unclear, misleading and contradictory. The users’ consent is neither transparent, nor voluntary since users would have to agree to the new terms in order to continue using WhatsApp.

While this close connection between the two companies was to be expected, many stakeholders find it surprising that WhatsApp and Facebook actually want to expand their data sharing. At the same time, Johannes Caspar is confident that on the basis of the GDPR procedure, he will be able to “safeguard the rights and freedoms of the many millions of users who give their consent to the terms of use throughout Germany. The aim is to prevent disadvantages and damage associated with such a black-box procedure.”

In view of the upcoming elections in Germany, it is to be hoped that – in dialog with the companies – data protection-compliant solutions will be found quickly.

Dario Henri Haux

Anordnung des HmbBfDI: Verbot der Weiterverarbeitung von WhatsApp-Nutzerdaten durch Facebook (11.05.2021): https://datenschutz-hamburg.de/pressemitteilungen/2021/05/2021-05-11-facebook-anordnung

Trumping the First Amendment: Updates on the Twitter Saga

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The decisions concerning the blocking of Twitter and Facebook accounts belonging to Donald Trump are still pending. 

On the contrary, the judicial proceedings regarding the attempts by then-President Trump himself to limit the reactions to his own posts by other Twitter users was decided by the United States Court of Appeals for the Second Circuit defining the question of whether blocking another social media user could consist in a violation of the First Amendment.

President Trump, acting in his official capacity as President of the United States, petitioned for a writ of certiorari in August 2020. Because, following the elections, President Biden would have become the petitioner to this action, the Justice Department asked the Supreme Court to declare the case moot (see here). On 5 April 2020, the US Supreme Court, following its established practice, granted the writ of certiorari, vacated the lower judgement, and remanded the case to the Court of Appeals for the Second Circuit with instructions to dismiss the case as moot.

What makes this decision particularly interesting is Justice Thomas’ concurring opinion.

Indeed, the concurring opinion of Justice Thomas addresses the ongoing discussions on the nature of “digital spaces”, in between private and public spheres. Many see an inherent vice in a system based on a private enforcement of fundamental rights to be performed by platforms, such as Twitter. 

In the case at stake, the petition revolved around the possibility to qualify a Twitter thread as a public forum, protected by the First Amendment. At the same time, however, the oddity of such a qualification becomes clear, as Twitter – a private company – has unrestricted authority to moderate the threads, according to its own terms of service.

Against this backdrop, Justice Thomas states that: “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms”.

From what has been said here, it should be clear that a turning point in the ongoing discussion that heats scholars, legislators as well as all players on a global scale is marked. Indeed, Justice Thomas analyses the legal qualification of the “public forum” doctrine and its applicability to Twitter threads since the main controversial element of the case regards the existence of a governmental control of the digital space (even in the limit of a single Twitter account). 

Given that Mr. Trump often used his personal account to speak in his official capacity, it is questionable whether this element might be fulfilled in the case at stake. At the same time, the private nature of providers with control over online content, combined with the concentration of platforms limiting the number of services available to the public, may offer new ways of legally addressing these challenges. For example, Justice Thomas proposes to consider the doctrines pertaining to limitations to the right of a private company to exclude others, such as “common carriers” or “public accommodation”. 

In this regard, Justice Thomas found that: “there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner”, especially in cases where digital platforms have dominant market share deriving from their network size.

Interestingly, Justice Thomas did not miss the chance to depict the digital environment as such, when stating that: “The Internet, of course, is a network. But these digital platforms are networks within that network”.

What is more, the dominant position of the main platforms in the digital market is taken for granted without further analysis. Namely, it is stressed that the existing concentration gives few private players “enormous control over speech.” This is particularly valid, considering that viable alternatives to the services offered by GAFAM are barely existing, also given to strategic acquisitions of promising start-ups and competitors. 

It becomes evident that public control over the platform’s right to exclude should – at least – be considered. In that case, platforms’ unilateral control would be reduced to the benefit of an increasing public oversight, that implies: “a government official’s account begins to better resemble a ‘government-controlled space’.”

Justice Thomas highlights that this precise reasoning gives strong arguments to support a regulation of digital platforms that addresses public concerns.

In conclusion, according to Justice Thomas, the tension between ownership and the right to exclude in respect to the right of free speech must be solved expeditiously and consideration must be given to both the risks associated with a public authority (as then-President Trump) cutting off citizens’ free speech using Twitter features, and the smoothing power of dominant digital platforms. 

Andrea Giulia Monteleone

The full text of the Supreme Court decision: 20-197 Biden v. Knight First Amendment Institute at Columbia Univ. (04/05/2021) (supremecourt.gov)

Artificial inventors – the EPO President requested to comment on the Dabus case

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We already referred about the Dabus case (see here, and here) and that appeal proceedings are pending before the EPO, against two decisions of 27 January 2020 that refused the applications designating an AI system as the inventor.

Now the EPO President requested the Board of Appeal to comment on the relevant questions (here). The EPO decisions held that the inventor must be a human being to fulfil the requirement for designation of inventor in the procedural and substantive terms. This seems also an international standard (based on discussions with the IP5 offices). The applicant contests such a standard. Given the importance of the issue and that this is the first time the EPO will take formal position on this, the President requested to comment on it.

The Board of Appeal granted the EPO President’s request (here). There are two main topics on which he wishes to comment. And the BoA made some additional thoughts:
(i) If the inventor must be a human being from a formal and substantive angle – what is the purpose of such requirement? Is it redundant?

The BoA advanced that:

  1. one possible view is that the sole purpose is to enhance the protection of the inventor’s right to be mentioned as such. In this case, if the application does not mention a person with legal personality as inventor, it could be argued that the requirement to designate the inventor is redundant.  This would be based on the concept that human intervention is not an inherent element of a patentable invention under Art. 52 EPC.
  2. On the other hand, if the concept of “invention” was limited to human-made inventions, the function of the inventor designation rules would also be to facilitate examination of a substantial requirement.
Risultato immagini per robots making experiments

(ii) Does the EPO have competence to examine the acquisition of the rights on the invention? If yes, what principles should the EPO apply?

The President now has 3 months to deliver his comments. More updates soon.

Francesco Banterle

EPO Board of Appeal, communication of 1 February 2021, in the appeal proceedings relating EP 3564144

Buddha in a cafè? No trademark for the Italian Supreme Court

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On 25 January 2016 the Italian Supreme Court (decision no. 1277, full text here) ruled on the validity of “Buddha Bar” and “Buddha Cafè” trademarks in a three instances dispute in which the defendant came always out winning.

The French companies George V Entertainment e George V Records, respectively owner of Buddha Bar and Buddha Cafè community trademarks, asked the Court of Milan to declare the infringement of their marks by the Italian entrepreneur owner of the “Buddha – Cafè” in Milan. However, both the Tribunal and the Court of Appeal of Milan rejected the claimants’ demand and, indeed, upheld the counter-claim of the defendant affirming the invalidity of the trademarks for lacking of distinctiveness under Article 7, a) of Community Trademark Regulation.

In appealing to the Supreme Court, the French companies argued that their signs would be deemed as particularly evocative and strong trademarks for the reason that they establish an anomalous connection between words which are conceptually disjointed: from the one side Buddha and on the other side Bar and Cafè.

For its part, the Supreme Court pointed out that, in order a sign to be valid pursuant to Article 4 of CTM Regulation, it is not enough that it should have an ‘expressive content’, but it is essential that the meaning of the term must be capable of distinguishing the goods or services of one undertaking from those of other undertakings. This remark concerns the standard law, and therefore it is undisputed.

More perplexingly the Court, as already set forth by both the Tribunal and the Court of Appeal, denied the distinguishing character of the term Buddha assuming that it not only (a) calls to mind a religion but also (b) transmits adhesion or interest to a philosophy and a way of life which characterize a custom pertaining to the most different expressions of the social behavior like literature, music, figurative arts and cuisine, so as to have become a trend.

As a consequence the Court said that the combination between the term “Buddha”’ and the terms “Bar” and “Cafè” is not unusual, because such meeting places are historically linked to specific expressions of the literature and in general of the art of the occidental cultural tradition.

In the light of the above, the Supreme Court dismissed the appeal proposed by the companies George V Entertainment and George V Records, hence confirming the invalidity of their two community trademarks.

The final and debatable outcome is that anyone cannot use the Buddha’s name on an exclusive basis to “denote a product or service”.  From a general perspective the upshot is even more puzzling: the most of characters and movements of culture, literature, art, and philosophy used to hang out at cafès, then, following this decision of the Supreme Court, none of the term referred to them should never be registered as a denominative trademark in combination with the words “bar” or “cafè” for cafeteria’s products or services.

It should be also noted that the Court, once established the lack of distinctive character, has deemed absorbed – then has failed to consider – the question whether the trademarks are contrary to public policy. Maybe simply affirming the invalidity of such trademarks due to their vilification of Buddhist thought would have been quite logically and reasonably commendable.

Matteo Aiosa

Italian Supreme Court, 26 January 2016, No. 1277, George V Entertainment s.a. and George V Records e.u.r.l. v. Buddha Cafè S.r.l.