Key dates set for coming into force of the new Audio-visual Media Services Directive

By Alastair Mackichan

On 28 November 2018, Directive (EU 2018/1808) (“New Directive“) revising the existing Audiovisual Media Services Directive (2010/13/EU) (“AVMSD“) was published in the Official Journal of the European Union. As such the key dates for when the New Directive comes into force and by when member states must transpose it into national legislation have been confirmed. These are as follows:


Directive EU/2018/1808 enters into force 18 December 2018
Transposition of Directive EU/2018/1808 into national legislation By 19 September 2020

The New Directive is likely to be implemented in the UK if, as is envisaged under the draft agreement on the withdrawal of the UK from the European Union (“Withdrawal Agreement“), there is a transition period post-Brexit (i.e. post 29 March 2019) until 31 December 2020. According to the provisions of the Withdrawal Agreement, most EU law (including as amended or supplemented) will continue to apply to the UK during the transition period, and most references to member states in EU law will include the UK.

By contrast, if the Withdrawal Agreement is not finalised and the UK government is unable to reach a Brexit deal by March 2019 (i.e. a ‘no deal’ scenario), then according to the Government’s technical notice on broadcasting and video-on-demand (published on 13 September 2018), the AVMSD and the New Directive will cease to apply in the UK, i.e. services under UK jurisdiction that broadcast into the EU would not be governed by the AVMSD or the New Directive unless the UK Government opted to implement these rules into UK law.

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UK Advertising Code (Cap Code): Rules changes and further consultation on the use of data for marketing

By John Wilks, Claire Sng and Ella Castle

In the wake of GDPR, the UK’s Committee of Advertising Practice has amended the CAP Code to introduce new rules on the use of data for marketing. It has also launched a consultation on potential further rule changes relating to child marketing data and prizewinners.


As discussed in a recent blog post (see here), CAP has been considering its future regulation relating to use of data in marketing and advertising, following the entry into force of GDPR. As such, in May 2018, CAP suspended existing Code rules regulating data protection issues (Section 10 – Database practice; and Appendix 3 – Online behavioural advertising), and initiated a Consultation on the collection and use of data for marketing.

In its Regulatory Statement on the new rules (see here), CAP identified the following aspects of GDPR as being particularly relevant to advertising rules:

  • a new definition of personal data;
  • a more detailed definition of consent;
  • stricter requirements for offering online services to under 16s;
  • reference to direct marketing as a “legitimate interest” for processing data; and
  • (related to that) a right to object to processing for the purposes of direct marketing carried out on the basis of a “legitimate interest”.


The rule changes cover three key data protection issues:

1. Removing rules on “pure data protection matters”

Although CAP considers that responsible data processing is an “intrinsic part of marketing, especially in a digital age”, CAP has decided to remove the rules on pure data protection matters (for example, data security and transfers of data outside the EEA) on the basis these rules are “unlikely to attract an expectation of regulation by the UK’s advertising regulator”. This conclusion is supported by the fact the ASA receives a low level of complaints on such matters, with complainants much more likely to address their grievances to the UK’s data protection regulator the ICO. The removal of ASA jurisdiction in this area is to be welcomed – as Consultation respondents had noted, there is otherwise the potential for uncertainty arising from having two different regimes regulating this area.

2. Amending Section 10 (Database Practice) of the CAP Code to comply with the GDPR

The amendments to Section 10 reflect and align with the GDPR, for example reflecting key GDPR definitions and mirroring the Article 13 and 14 fair processing notice requirements. They also include confirmation around responsibility for compliance with data rules (while marketers are likely to be data controllers and so primarily responsible, others involved in sending marketing communications are also responsible – agencies beware!). In addition, there is a new rule requiring marketers to do everything reasonable to ensure anyone notified to them as dead is not contacted again.

Removing Appendix 3 (Online behavioural advertising) of the CAP Code

This Section is removed and online behavioural advertising is instead addressed under the general marketing-related data protection rules set out in Section 10.

CAP indicated in its Evaluation of Consultation Responses (see here) that it will have regard to relevant Information Commissioner Office (ICO) and industry guidance relating to online behavioural advertising.


These rule changes announced at the beginning of this month, have been introduced with immediate effect. However, the rules will be under review for a 12 month period and CAP has said the ASA aims to deal with issues informally for the first 6 months, i.e. there will be a grace period for advertisers to get used to the new approach.

CAP intends to use independent industry watchdog the Direct Marketing Commission (DMC) to provide advice in cases where “legitimate interest” is put forward as the basis for processing personal data for marketing communications. Additionally, CAP will refer matters to the ICO where an issue is particularly contentious and the outcome has the potential to affect widespread industry practice. Such a co-ordinated approach, like the updating of the Code to take account of GDPR more generally, is to be welcomed, so as to avoid uncertainty and inconsistency. While the ICO will doubtless continue to be the main point of call for data protection related complaints (and marketers will want to concern themselves primarily with compliance with GDPR and other privacy law rather than the CAP Code in relation to data processing matters), it is highly desirable given the ever-increasing importance of data in marketing and advertising that the CAP Code is consistent with and complements GDPR.


Further changes are expected in future months. As we reported in September (see here), in light of GDPR, CAP has been considering changes to the requirement to announce details of prize promotion winners (Rule 8.28.5 of the CAP Code). The ASA is not currently enforcing Rule 8.28.5, and has now opened a further consultation on this issue as well as the subject of using data in marketing to children which will close on 7 December 2018 (see here). As per our previous article, and given the changes that have already been announced following the implementation of the GDPR, it seems likely that the requirement to publish names of prize winners will not be reinstated following the conclusion of the consultation. In addition, those interested in data aspects of direct marketing may wish to respond to the ICO’s consultation on its Direct Marketing Code (see here); the closing date for that one is 24 December 2018.

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New UK Advertising Regulator 5 year Strategy focuses on Online Impact

By Claire Sng

Yesterday at a conference hosted by the UK advertising regulator, the ASA, billed as “The future of ad regulation”, the ASA announced its new 5 year plan entitled “More impact online”, with an ambition of making every UK ad responsible (see link here).

Reflecting on the change in landscape that has occurred, Guy Parker, Chief Executive of the ASA, who unveiled the new strategy, noted that despite only being within the ASA’s remit since 2011, online “advertiser-owned ” ads (e.g. ads on company websites and social media pages) account for over half of the ASA’s work and in 2017 around 88% of ads that were amended or withdrawn were online ads (in whole or in part).

The new strategy has 6 strands:

  1. People – putting people first and making sure regulation benefits everyone not just those that complain to the ASA; including using machine learning and data gathering to work out what peoples’ priorities are;
  2. Online – improving regulation, including by working with platforms. One example given at the conference was asking platforms to use their technology to remove misleading claims that have already been adjudged misleading by the ASA;
  3. Effectiveness – better prioritisation; exploring machine learning to improve regulation such as using algorithms to test claims being made by advertisers (an example given at the conference was to test whether a claim that no delivery charge applied to UK mainland deliveries was true if you entered a particular postcode into the advertiser’s website);
  4. Buy in – trying to improve engagement by online-only advertisers, retailers, SME businesses and influencers;
  5. Enforcement – focussing on improving how non-compliant ads are proactively identified and removed and improving sanctions. (There was no more detail provided about sanctions at the conference. The strategy paper talks about cooperation and use of technology, but it will be interesting to hear more details as the strategy starts to be implemented next year); and
  6. Independence – providing evidence based decisions.

Overall what is clear is that the ASA is aiming to embrace use of new technology, AI and machine based learning, both to support research and thought leadership but also to identify and tackle non-compliant ads in order to seek to provide online regulation that is fit for the future. Margot James, Minister of State for the Department for Digital, Culture, Media and Sport, was not able to be at the conference, but provided comments by video and this is something she picked up on; noting that in an age of a decline in trust and the current levels of consumption of digital, innovative thinking is what is needed.

In addition to the strategy, there were lively panel debates about protecting children online and about regulating new forms of advertising, both of which are important elements of the new strategy. In respect of these topics, the ASA wanted people’s thoughts on the following two questions:

  1. What do you think should be the ASA’s priority for regulating newer forms of advertising?
  2. What do you think should be the ASA’s priority for protecting children online?

If you have a view on these topics, I’m sure the ASA would welcome your thoughts.

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Australia – Navigating social media advertising

By Alexandra de Zwart, Valiant Warzecha and Peter Jones

Worldwide, there has been increased regulatory scrutiny of social media influencers, including the UK’s ASA guidance (see previous update by John Wilks and Claire Sng) and Competition and Markets Authority investigation, the European Commission’s ‘Behavioural Study on Advertising and Marketing Practices in Social Media’, and the recent crackdown by South Korea’s Fair Trade Commission.

This flurry of activity is a timely reminder for businesses operating in Australia to review their social media practices for compliance with the Australian Consumer Law (ACL) and the Australian National Advertising Association (ANAA) Code of Ethics. Below, we set out a number of considerations for operating and advertising on social media in Australia. Further, there is a clear direction from media and political avenues focusing on the online behaviour and presence of a number of Australian businesses.  Increasingly, a business’s online presence is not only a potential area of legal exposure but also an area where reputation risk needs to be managed to minimise the risk of broader brand damage.

Direct advertising

Features recently integrated into the Instagram platform now allow businesses to post information on their products with tags that embed pricing information, product feature descriptions and website links. These tags help the platform play a larger role in direct product marketing.

However, to the extent representations made in embedded tagging exceed – in terms of product characteristics – the characteristics that the product itself can reasonably support, there is a risk such representations could be considered false, misleading or deceptive. Under the ACL, businesses are precluded from making false statements or engaging in conduct in the course of trade and commerce that is, or is likely to, mislead or deceive ordinary consumers about the relevant product or service offering. Accordingly, businesses should ensure that all product information included in advertisements is accurate, can be fully supported, is regularly updated, and consistent across all advertising mediums, especially where social media posts link to websites.

Recent amendments to the ANAA Code of Ethics also require advertising and marketing communications to be ‘clearly distinguishable as such to the relevant audience’. Sponsored posts by ‘influencers’ should therefore disclose the sponsorship using either inbuilt ‘paid’ or ‘sponsored post’ descriptions or the hashtags ‘#ad’, ‘#spon’ or ‘#sponsored’, otherwise there is a risk consumers will be misled as to the authenticity of product reviews or endorsements. Where posts are not clearly marked as sponsored, businesses should assess whether disclosure obligations arise for their content by considering whether they have a reasonable degree of control over the material and whether the material draws the attention of the public in a manner calculated to promote the product.


‘Hashtags’ are a long standing feature that have been used to greatly improve traffic. However, they are increasingly being viewed as ‘conduct’ that is capable of enlivening the provisions of the ACL. Accordingly, businesses should ensure that their hashtags correlate with the product they are selling and would not lead consumers to form a mistaken belief about the product’s features.

Negative reviews

Adverse publicity is a fear many businesses have and, considering the potential for negative reviews to ‘go viral’, there is temptation to delete these posts. As a general rule, these reviews should not be removed as there is a risk of misleading consumers about the general body of the product reviews. Similarly, there are reputational risks associated with not responding to negative consumer comments in a balanced and fair way and this can often be more damaging than the initial review. With this in mind, businesses should establish clear ‘house rules’ that apply to posts on social media pages, and these should be prominently featured on the business’s social media pages. In other words, there is an element here of “if you live by the sword, you – may – die by the sword”.

“Micro influencers”

In recent times, businesses have questioned the value of “celebrity” social media influencers, such as elite athletes, who charge exorbitant sums for a single post. Instead, these businesses are favouring partnerships with “micro influencers”, such as amateur athletes or professional athletes in more obscure sports (i.e. base-jumping or motocross) as a more cost effective marketing strategy, particularly where there is an engaged social media base.

A “micro influencer” is a social media user with between 1,000 to 90,000 followers who makes posts promoting products.  Their key advantages include use of products out of real loyalty to a brand (in some cases), smaller and more intimate followings that share a uniting passion for a particular sport, person or subject matter and, as a result, followers perceive the influencer’s endorsements as being more genuine.  “Micro influencers” also require much lower remuneration, if any, and exist in greater abundance than “celebrity influencers”, meaning they can generate content at a scale that captures more market segments.

It has become common practice for businesses to send “micro influencers” free products and/or pay nominal amounts in return for an Instagram post or YouTube review of a product.  However, whilst these “micro influencers” present enormous return on investment potential, there are significant legal and reputational risks involved with using less sophisticated influencers.  Accordingly, businesses should ensure that “micro influencers” are made aware of obligations:

  • under the ANAA Code of Ethics and ACL to clearly indicate that their content is sponsored;
  • to not improperly use the business’s intellectual property such as trade marks, or infringe any third party rights; and
  • to comply with social media policies to ensure that any posted content is not taken down by platform moderators.

To ensure compliance and risk mitigation, businesses should actively monitor content they have sponsored and request corrections if necessary.

There have also been reported instances of children being used as “micro-influencers”. This is a particularly nuanced and potentially dangerous area in which business may wade. As a minimum step, businesses should confirm the capacity of the influencers and athletes to agree to relevant terms and conditions or that they take all reasonable steps to ensure parental consent is obtained before entering into any agreement if they are under the age of 18.

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UK – new ASA guidance for influencers

By John Wilks & Claire Sng


The ASA has this week published new guidance for influencers about how to make their ads clear (see link here “Guidance”). This Guidance follows the ASA’s call for evidence in March 2018.

This is a hot topic at the moment with:

  • The European Commission having just published a report about the behaviour study it conducted on advertising and marketing practices in social media (see link here) (“EC Report”); and
  • The ongoing consumer enforcement investigation that was launched by the Competition and Markets Authority (CMA) over the summer relating to social media endorsements and the labelling of posts by social media influencers.

Read the rest of this entry »

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New rules for audiovisual media services approved by European Parliament

By Will Thorman

On Tuesday, 2 October 2018, the European Parliament voted to update rules on audiovisual media services, including the introduction of a quota on European content, stricter rules on advertising, and enhanced protection of children.

The revised legislation will apply to broadcasters, but also to video-on-demand and video-sharing platforms (including live streaming).

Providers of such audiovisual media services will have to:

  • ensure that at least 30% of their catalogues are made of up European content (although there are exemptions to this);
  • take appropriate measures against content inciting violence, hatred and terrorism, including reacting quickly when content is reported as harmful, and may even be required  to create effective mechanisms to allow users to report or such content;
  • comply with strict rules on broadcasting advertising and product placement in children’s TV programmes; and
  • ensure that personal data about children which they collect are not processed for commercial use.

The new legislation could also require such platforms to help finance European films and TV, either by investing directly in content or by contributing to national funds.

Next steps

The legislation still needs to be formally approved by the European Council before it comes in to force, and Member States will then have 21 months to incorporate the new rules into national legislation.

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Broadcasters’ Audience Research Board begin analysing multiple-screen viewing

Broadcasters’ Audience Research Board begin analysing multiple-screen viewing

BARB, the TV audience measurement body, announced that from 25 September 2018 they will make available  programme viewing figures across four devices (TV, tablets, PCs and smartphones) in the United Kingdom. The “four-screen” viewing figures are the first stage of the on-going Project Dovetail, an initiative established to meet the TV and advertising industry’s need to understand the way in which viewers are consuming content on devices other than the traditional TV set. The multiple-screen audience figures will be published on BARB’s Dashboard eight days post-transmissions and back-dated figures are also available for programmes broadcast from 27 August this year.

On the launch of the service, BARB’s Chief Executive, Justine Thomas said “Today we reach another milestone in the delivery of Project Dovetail, which is designed to meet industry expectations for a trusted cross-platform audience currency. This is an ambitious project, as there are many challenges in delivering multiple-screen audience figures to the rigorous standards expected of a joint industry currency such as BARB.”

For more information on the three stages of Project Dovetail, please follow the link here.

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Deal or no-deal? UPC Implications following a no-deal Brexit

By Bonella Ramsay and Sam Mitchell 26 September 2018



This week, the UK Government released multiple technical notes detailing the intellectual property implications of a no-deal Brexit for exhaustion of rights, patents, trademarks and designs, and copyright. A few months ago, the idea of a no-deal Brexit was only entertained as a highly unlikely, ‘worst-case scenario’. This series of notes provides an update on the government’s plan in light of a hard Brexit.


The UK has ratified the Unified Patent Court Agreement, but it still needs to be ratified by  Germany and it is unclear if this will occur before 29 March 2019.  If the UPC does not come into force, there will be no changes for UK and EU businesses at the point that the UK exits the EU.

If the UPC does come into force, the notice confirms that the Government will “explore whether it would be possible to remain within” the UPC and UP systems even in a hard Brexit scenario. If the UK has to withdraw from one or both systems, the notice envisages the following implications:

  1. Businesses will no longer be able to use the UPC and UP systems to protect and enforce their inventions within the UK, but will be able to apply for domestic UK rights as they can now, via the UK Intellectual Property Office and the non-EU European Patent Office.
  2. Existing UPs will give rise to equivalent UK patent protection to ensure continued protection in the UK. However the UP system only comes into force when the UPC is operational. It is therefore unlikely that UPs will exist before 29 March 2019.
  3. UK businesses will still be able to use the UPC and UP systems to protect their inventions within the contracting EU countries. However in the UK, businesses will only have the option of protecting their inventions using national patents (including patents available from the European Patent Office) and UK courts.
  4. UK businesses will still be open to litigation within the UPC based on actions they undertake within the contracting EU countries if they infringe existing rights.

For further information please contact Bonella Ramsay (Partner).

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Deal or no-deal? Implications for patents following a no-deal Brexit

By Bonella Ramsay and Sam Mitchell 26 September 2018




This week, the UK Government released multiple technical notes detailing the intellectual property implications of a no-deal Brexit for exhaustion of rights, patents, trademarks and designs, and copyright. A few months ago, the idea of a no-deal Brexit was only entertained as a highly unlikely, ‘worst-case scenario’. This series of notes provides an update on the government’s plan in light of a hard Brexit.

The Withdrawal Act 2018 intends for current EU patent legislation to be retained in UK law.  Importantly, the EU’s legislation on supplementary protection certificates (SPCs) will be kept in UK law and “this law, along with existing supporting provisions in UK patents legislation, will form the UK’s own supplementary protection regime on exit”.   Likewise, all other EU legislation relevant to patents and supplementary protection certificates will be kept in UK law.

The UK’s membership of the European Patent Convention is not impacted by Brexit the current European patent system) will remain in place and continue to operate independently from the EU regime”.

The notice confirms that in the event of a hard Brexit:

  1. Any existing rights and licences in force in the UK will remain in force after March 2019 and no action is required from patentees or licensees.
  2. The SPC regime in the UK will continue to operate as before for UK, EU and third country businesses.
  3. Pending applications for patents and for SPCs will continue to be assessed on the same basis, and new applications can continue to be filed. If legal proceedings involving these rights or licences are underway, they will continue unaffected.
  4. The conditions for patenting biotechnological inventions will remain in place.  UK, EU and third country businesses as UK patent holders, third parties and applicants can continue to make decisions on the basis of the current legislation. Patent examiners will continue to apply the same law when scrutinising patent applications in this area. Third parties who wish to challenge the validity of a patent will be able to do so on the same grounds as at present.
  5. For compulsory licensing, UK, EU or third country businesses as holders of UK patents or plant variety rights  will continue to be able to apply for a compulsory licence, where there is an overlap between the rights.
  6. UK, EU and third country businesses will continue to be able to obtain a compulsory licence for manufacturing a patented medicine to meet a specific health need in a developing country.
  7. For pharmaceutical product testing, UK, EU or third country businesses can continue to rely on the exceptions from patent infringement provided for various studies, trials and tests carried out on a pharmaceutical product.
  8. There will be no immediate changes to the UK address for service rules which currently allow an address for service with?in the EEA when making a UK patent application.
  9. Legal professional privilege will continue to applywhrre?  to both UK registered patent attorneys and those not based in the UK but on the ‘list of representatives for the EPO.


For further information please contact Bonella Ramsay (Partner).

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Deal or no-deal? Implications for Trademarks and Design rights following a no-deal Brexit

By Ruth Hoy, Leigh Martin, John Wilks and Sam Mitchell 26 September 2018



This week, the UK Government released multiple technical notes detailing the intellectual property implications of a no-deal Brexit for exhaustion of rights, patents, trademarks and designs, and copyright. A few months ago, the idea of a no-deal Brexit was only entertained as a highly unlikely, ‘worst-case scenario’. This series of notes provides an update on the government’s plan in light of a hard Brexit.

EU Trademarks and Community Designs

The UK government has confirmed that in the event of a hard Brexit:

  1. existing registered EU trademarks or registered Community designs held will continue to be valid in the remaining EU member states;
  2. protection of existing registered EU trademarks or registered Community designs in the UK will be through a new, equivalent UK right which will be granted with “minimal administrative burden” (there is no specific guidance as to what this means, and no confirmation that it will not require payment of a fee).  The new UK mark created will then be treated as if it had been applied for and registered under UK law;
  3. rights holders will be notified that a new UK right has been granted. There will be an ‘opt out’ for any business, organisation or individual that does not want to receive a new comparable UK registered trade mark or design;
  4. applicants with a pending application for an EU trademark or a registered Community design that has not achieved registration by the date that the UK leaves the EU will be able to refile in the UK for the new UK equivalent right retaining the EU application date for priority purposes, PROVIDED that the application is made within nine months from the date of exit.  The re-filing will incur a standard trade mark filing fee;
  5. applicants with pending applications for an EU trademark or a registered Community design will not be notified so will need to consider themselves whether to take advantage of the opportunity to re-file in the UK in that nine month window;
  6. new applications will be eligible to be filed in the UK for UK trademarks and registered designs as they are now, and at the cost specified in the UK fee structure; and
  7. UK applicants, like EU and third country applicants, will continue to be able to apply for protection in the EU through an EU trade mark or registered Community design as they do currently.

Unregistered Community Designs – the Supplementary Unregistered design right

For Community unregistered designs which exist at exit date:  The UK government will create an equivalent of the EU Community Design right, so that existing unregistered Community design rights will continue to apply in the UK for the remaining period of protection of the right.  This will be provided with no action required by the right holder. The UK government also comments that existing unregistered Community designs will also continue to be valid in the remaining EU member states.


For new designs disclosed after exit date:  Such designs first disclosed in the UK will be able to benefit from the existing UK unregistered design regime.  Designs disclosed in the UK will also be able to benefit from a new “supplementary unregistered design right” to be introduced by the government, which will mirror the characteristics of the unregistered Community design right.


For further information please contact Ruth Hoy (Partner), Leigh Martin (Partner) and John Wilks (Partner).

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