Japan – Amendments to the METI Guidelines on Electronic Commerce and Information Property Trading

By Keitaro Uzawa and Ann Cheung

The Ministry of Economy, Trade and Industry of Japan (“METI“) recently revised the Interpretative Guidelines on Electronic Commerce and Information Property Trading (“Guidelines“), which apply to all online business operations in Japan and clarify how the Civil Code, which governs Japanese commercial contracts, and other relevant laws, such as the Act on Special Provisions to the Civil Code Concerning Electronic Consumer Contracts and Electronic Acceptance Notice (Act No. 95 of 2001) (“Electronic Contract Act“) and the Act on Specified Commercial Transactions (Act No. 57 of 1976), are applied to various legal issues relating to electronic commerce and information property trading.

Existing sections of the Guidelines have been amended to provide detailed guidance on certain issues surrounding electronic commerce.  The following existing sections of the Guidelines have been amended:-

  • Mistakes caused by consumers’ erroneous operations (please see Point 1 below for an overview)
  • Expressions of intentions by minors (please see Point 2 below for an overview)

New sections have been added to the Guidelines in order to clarify confusion surrounding end-user license agreements between operators and users in relation to the distribution and streaming of digital contents (including electronic publications, music, online games, videos, etc.) on the internet.  The following sections have been added to the Guidelines:-

  • Definition of “digital contents” (please see Point 3 below for an overview)
  • Legal issues concerning the provision of digital contents on the internet (please see Point 4 below for an overview)
  • Use of digital contents after termination of a digital contents end-user license agreement (please see Point 5 below for an overview)
  • Obligation of operators to redistribute electronic publications (please see Point 6 below for an overview)
  • Rights in relation to cybernetic items in online games (please see Point 7 below for an overview)

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/japan-guidelines-on-ecommerce-and-ip-trading/

Japan – Google Privacy Case

By Matthew Dougherty

On 9 October 2014, Judge Nobuyuki Seki of the Tokyo District Court granted a provisional injunction against Google Inc. (“Google“) and ordered Google to delete search results of a plaintiff who claimed his privacy rights had been violated because Google’s search engine results of the plaintiff’s name included news articles suggesting the plaintiff had a criminal past.  In addition, the plaintiff claimed that he had received death threats because the search results suggested the plaintiff had a criminal past and that made his claim for damages immediate and actual. 

While the court’s written opinion in this case has not been made public, it was reported that the plaintiff claimed that his life had been threatened because search results of the plaintiff’s name included information over 10 years old that suggested the plaintiff had a criminal past.  Judge Seki’s ruling found that some of the results infringed on the plaintiff’s personal rights, that the plaintiff had suffered actual harm as a result and ordered Google to delete 122 of 237 search results.

This case is similar to the ruling by the European Court of Justice that found people had the right to request that Google in the EU remove links to results generated by a search for their name, making it difficult for third parties to find them. 

However, it is still unclear whether Japanese courts will adopt and recognize a “right to be forgotten”.  This case was decided in a provisional trial at the district court level and has not been considered by Japanese appellate courts or the Japanese Supreme Court.  It should be noted that in a separate case earlier this year, a court in Kyoto dismissed a claim filed against Yahoo Japan because the plaintiff in that case actually did have a criminal record.

The right of privacy from search results is therefore not settled in Japan and whether a Japanese court will find search results infringe on personal rights may depend, in part, on whether the search results are accurate and/or part of the public record.  Resolution of this question will likely require a ruling from the Japanese Supreme Court.

For more information, please contact Matthew Dougherty.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/japan-google-privacy-case/

UK: High Court clears the way for tighter control of online gambling

The Government’s remote gambling reform has moved a step closer after the High Court dismissed a legal challenge to the measure, which seeks to bring the licensing of UK-facing remote gambling operators under UK control, no matter where the operator is located.

The Gibraltar Betting & Gaming Association brought judicial review proceedings in order to challenge the Gambling (Licensing & Advertising) Act, under which offshore operators would have to obtain British licence from the Gambling Commission, in order to take bets from British-based customers. The GBGA argued the Act interfered with the right to free movement of services, guaranteed under EU law. However, the judge ruled that the “the new regime serves a series of legitimate objectives” and that the measures are “neither disproportionate, nor discriminatory, nor irrational”.

The legislation will come into force on 1 November 2014.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/uk-high-court-clears-the-way-for-tighter-control-of-online-gambling/

FIFA Women’s World Cup – Artificial Turf Dispute

In the lead up to the 2015 FIFA Women World’s Cup, which will be hosted by Canada (World Cup), a group of the world’s elite female football players (including the FIFA Women’s World Players of the Year for 2012 and 2013, Abby Wambach and Nadine Angerer respectively, and Samantha Kerr and Caitlin Food of Australia) have commenced legal proceedings against FIFA and the Canadian Soccer Association (CSA) in the Ontario Human Rights Tribunal.

The Legal Proceedings

The players are asserting in their application that the use of venues turfed with synthetic grass during the World Cup is discriminatory as it stands in direct contrast to the CSA’s and FIFA’s solicitude towards ensuring that the FIFA  Men’s World Cup matches are consistently played on natural grass.[1] Read the rest of this entry »

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/fifa-artificial-turf-2015wc/

Essendon v ASADA: Joint doping investigation legal, says Federal Court of Australia

On 19 September 2014, Australia’s Federal Court dismissed the Essendon Football Club’s (Essendon) litigation against the Australian Sports Anti-Doping Authority (ASADA). Justice Middleton determined that the “joint investigation” that ASADA conducted with the Australian Football League (AFL) was within the statutory powers granted to ASADA.

The court action was launched in response to 34 “show cause” notices issued by ASADA to players at the club for the supplements regime administered at Essendon in 2012. The supplement allegedly administered is Thymosin Beta 4, which is a substance banned under Class S2 of the WADA Code.

For more background, see our previous article here.

Issues in the proceedings

Did ASADA have the power to conduct the “joint investigation” with the AFL?

  1. Did ASADA conduct the investigation for improper purposes (to circumvent the limitations of its own powers by using the AFL’s contractual “compulsory powers” to compel the interviewees to respond; and to assist the AFL investigation)?
  2. Did ASADA breach obligations of confidentiality or restrictions on disclosure regarding the conduct of the investigation and the provision of information to the AFL?
  3. Did ASADA act for improper purposes in providing information (e.g. an Interim Report) from the investigation to the AFL?

ASADA’s broad powers under the Act permitted a “joint investigation”
There was no dispute from either party that in carrying out the “joint investigation”  with the AFL, ASADA obtained a benefit they did not otherwise have. Whilst ASADA had no power to sanction or compel the players to provide assistance, it obtained the benefit of what the AFL had -  the contractual power of the AFL to compel Essendon players and personnel under the “AFL Code” and “Players Rules” (contractual obligations) to participate in an investigation and to answer every question asked at an interview.[1]

Justice Middleton analysed the Australian Sports Anti-Doping Authority Act 2006 (the Act) in great detail and concluded that the powers and functions afforded to ASADA should be broadly construed to allow them to do all things “convenient to be done in connection with the performance of their functions”. In interpreting the text of the Act, Justice Middleton deemed that the Chief Executive Officer of ASADA was permitted:

  • “to do all things necessary or convenient to be done for or in connection with the performance of his or her functions” (section 22 of the Act);
  • to “investigate possible anti-doping rule violations” (section 13(1) of the Act;
  • to “disclose the information to all or any of the following: … a sporting administration body” for the purposes of, or in connection with, such investigations (clause 4.21 of the National Anti-Doping Scheme).

Therefore, Essendon’s submission that the investigation was unlawful as the Act makes no reference to a “joint investigation” was extinguished by ASADA’s broad power to do all things “convenient” to be done “in connection” with the performance of their functions.

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/efc-asada-fca-judgment/

GLOBAL: Mobile apps – increasing privacy transparency is on top of your to-do list!

Patrick Van Eecke & Elisabeth Verbrugge

As previously announced, the Global Privacy Enforcement Network (GPEN) recently released the results of the global privacy sweep of mobile applications it conducted in May 2014.

More than 25 privacy commissions around the world examined a total of 1,211 mobile apps. The sweep targeted both Apple and Android apps, both free and paying apps, both public and private sector apps and covered a variety of different types of apps, ranging from games over health apps to banking apps. The privacy commissions’ reviews focused in particular on transparency and consent.

Key findings

GPEN’s key findings include the following:

  • Three quarters of the apps requested at least one permission from its users, usually relating to location, device ID, access to other accounts, camera and contacts;
  • Nearly one third of the apps appeared to request access to information which seemed irrelevant to the functionalities of the app;
  • In almost 60% of the cases, it was difficult to find any privacy related information before installing the app;
  • Over 40% of the apps’ privacy policies were not easily readable on small screens;
  • The majority of apps, 85%) fails to provide clear information on the collection, use and disclosure of personal data.
  • The report praises the use of pop-ups, layered information (putting important information up front with links embedded to more details) and just-in-time notification (informing the users of potential collections or uses of information when they are about to happen).

The most popular apps were among those that received the best ratings. This confirms the general conclusion of the sweep: clear, concise privacy language builds consumer trust and is good for business.

Top tips for your mobile apps

The Office of the Privacy Commissioner of Canada, which coordinated the sweep, released ten tips for communicating privacy practices to app users. They can be summarised in the following three commandments:

  • Be transparent

Privacy information should be specific, comprehensible and easily readable. In practice, this implies that rather than providing long legalistic privacy policies, specific notifications should be given at key decision points, e.g. the moment of purchase. Any information should be written in an understandable manner, taking into account the language and level of sophistication of your audience. Also, any information should be presented in a way that takes into account the mobile device context, including smaller screens.

  • Explain the data you are requesting and collecting

Secondly, sufficient information must be given to allow users to make an informed consent decision. Specific information should be given on how the app will use the permissions it seeks. Information should also cover data collected through social media logins such as Facebook, and the manner in which such externally collected data will be used. When asking permission, you should also make sure that you ask permission for all data usage envisaged: permission to access information does not as such imply permission to collect, use or disclose such information.

  • Make, and keep, privacy information accessible

Users should not be left guessing if and to which extent an app collects personal data. Even if your app does not collect any personal data, the user should be informed of this. You should also avoid users having to exit the app to access privacy information as this is an unnecessary and cumbersome extra step. It is indeed preferable to make privacy information available via integration with the app’s functions. When using pop-ups or similar mechanisms at key decision points, make sure you do not forget to include a functionality that allows users to re-visit the information after the pop-up is dismissed.

For more information, please contact patrick.van.eecke@dlapiper.com or elisabeth.verbrugge@dlapiper.com

 

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/global-mobile-apps-increasing-privacy-transparency-is-on-top-of-your-to-do-list/

Belgium: Gaming Commission calls for blacklisting of free gambling apps

Patrick Van Eecke and Antoon Dierick (DLA Piper, Brussels) discuss the Belgian Gaming Commission’s call for restricting the offering of free gambling apps.

By Patrick Van Eecke and Antoon Dierick

In today’s Belgian national media, the Belgian Gaming Commission has pleaded to restrict the offering of free gambling applications (“apps”) which allow persons to gamble for free on their mobile device. The Commission for example refers to free blackjack and poker games. According to the Gaming Commission, such free apps lower the bar for persons to participate in paying gambling services, which is deemed problematic in case the operator of the application does not verify the participant’s age. The Commission’s concerns thus seem primarily to be directed towards participation by minors. More specifically, the Commission asks for a blacklist to be adopted containing gambling apps, the offering of which is prohibited towards minors and to agree on the integration of age verification tools with the industry. The BGC thus seems to wish to repeat its already well-known blacklisting efforts, but applied this time to operators offering gambling apps (including several major app stores).

However, the call by the Gaming Commission is noteworthy, as Belgian regulations on games of chance (encompassing traditional casino and arcade games next to betting activities) only apply to games where participants need to make a stake in order to participate. In other words, free games of chance do not fall under the ambit of the Belgian Games of Chance Act. In case the user of the gambling app needs to pay for certain app upgrades, but does not have to make a stake to participate in the game itself, this game will likely not be qualified as a regulated game of chance.

In this sense, taking action against such applications seems to surpass the Commission’s regulatory competences as the Commission is competent only for regulating games of chance falling under the Games of Chance Act. This is probably also why the Commission has publicly appealed to other government institutions (e.g. those competent for the well-being of children) to take initiatives in this respect.

We will of course further report on any further developments on this issue, possibly from government institutions in Belgium or from other stakeholders in the industry.

For more information, please contact patrick.van.eecke@dlapiper.com or antoon.dierick@dlapiper.com

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/belgium-gaming-commission-calls-for-blacklisting-of-free-gambling-apps/

FIFA to ban third-party ownership of players.

By Danielle Sharkey and Oliver Kichenside

Following a meeting of the FIFA Executive Committee on 26 September 2014, FIFA President Sepp Blatter has confirmed that the controversial practice of third-party ownership of players will be banned in future.

Third-party ownership in the football industry is where a football club does not own 100% of the economic value of one of its players. There are various ways in which such an agreement can be constructed but, typically, a company or an individual investor will provide a football club or an individual player with finance in return for a percentage of a player’s economic value (usually capitalised by way of a transfer fee).

Third-party ownership has caused controversy in recent years and, as a result, countries such as England, France and Poland have already introduced regulations prohibiting the practice.

Third-party ownership famously hit the headlines in England when a dispute arose concerning Carlos Tevez when he was playing for West Ham United. More recently, Manchester City’s £32 million purchase of Eliaquim Mangala from Porto was one of four completed major transfer deals this summer in England involving third-party ownership, although English clubs buying a third-party owned player are required to buy out any contractual interest before signing a player subject to third-party ownership.

Whilst FIFA have condemned the practice of third-party ownership due to the negative effect that it has on the integrity and transparency of football, they have also recognised that the practice cannot be outlawed immediately due to its prevalence in many countries including Brazil, Argentina, Portugal and many Eastern European nations. FIFA have said that the ban will therefore only come into place “following a transitional period”. It is still to be decided how long that transitional period will be, but a Working Group has been set up by FIFA to establish the length of that period and will submit a proposal to the next FIFA Executive Committee meeting in December.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/fifa-to-ban-third-party-ownership-of-players/

GB: Gambling point-of-consumption legislation delayed until 1 November

The Government has announced that the full implementation of the Gambling (Licensing and Advertising) Act 2014 will be postponed until 1 November 2014.

Following judicial review proceedings in the High Court on 22-23 September (the Gibraltar challenge to the Act), the Department of Culture, Media and Sport will shortly publish a further statutory instrument to postpone this legislation coming into force until 1 November 2014. This will allow the Court more time to assess the issues raised.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/gb-gambling-point-of-consumption-legislation-delayed-until-1-november/

SPAIN: Match-fixing- could the age of innocence be over?

Authors: Jorge Monclús and Diego Ramos

Corruption is a problem. Keeping corruption out of public scrutiny is an even bigger problem, because responsible people remain untouched and ready to repeat the same wrong behaviours. In that sense, the financial crisis that hit Spain hard from 2007 onwards has helped to lift the veil that covered several corruption cases that went unnoticed before that period. Spanish Media devote entire sections to highlight cases of bad management and corruption, whilst judges and public prosecutors do their best to bring the masterminds in front of the courts of justice. The public perceives that the country is improving in term of accountability and business cleanliness, with high honesty standards being put forward.

Amazingly, whilst match-fixing was a serious issue in most of Europe, with a number of big scandals being prosecuted over the last decades and whilst nearly every sector in Spain saw prosecutors chasing corruption cases and making headlines, Spanish sports sector, world-admired Spanish soccer in particular remained unspoilt. Rumours concerning end-of-season games were swiftly dismissed for lack of evidence. A general feeling of complacency was shared by fans, players and managers alike. Spain soccer was an extraordinary exception to the corruption issues faced by other European football leagues and by the Spanish economy.

Thıs week, the Spanish Anti-Corruption Prosecutor Office has casted some doubts on that idyllic image. It summoned more than 30 people as witnesses in relation to the Levante v. Real Zaragoza match played on May, 2011 on the final fixture of the 2010-2011 Spanish First Division League Season. With the final score of the match -winning Real Zaragoza 1-2 at Levante’s stadium- both teams avoided relegation to the Second Division. Match-fixing suspects were around this match at that moment, but were eventually discarded. Again, no clear evidence was available.

After several investigations run by the Spanish football league, Spanish Anti-Corruption Prosecutor is now in charge of the investigation of the match. According to the Spanish Media, it could have detected traces of unusual movements of funds in the accounts of people connected to the match. This is the first time that a match of the Spanish football is directly investigated in depth by the Spanish authorities. Most of the players of the match, as well as the former president and the former coach of Real Zaragoza will be under interrogation of the prosecutor office. Depending on the conclusions, a criminal proceeding could be initiated. It may be well that the procedure is finally closed without indicting anyone. Actually, under Spanish law, everyone is innocent until the contrary has been demonstrated beyond reasonable doubt. No final evidence has been brought forward and the reputation of players and managers shall be strongly preserved and protected. Everyone desires a happy end for the case. However, at the same time, Spain may also realize that, after all, Spain may be not so different from the rest of the world, for good and bad.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/match-fixing-in-spain-may-the-age-of-innocence-be-over/

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