A primer on the new law for relevant service providers, within and beyond the UK.
By Gail E. Crawford, Deborah J. Kirk, Fiona M. Maclean, Alain Traill, Victoria Wan, and Amy Smyth
The Online Safety Act (the OSA) received Royal Assent on 26 October 2023 and is now in force.
The OSA establishes an extensive regulatory framework for providers of online user-to-user services and search services with links to the UK. A link to the
The government has announced it will come up with a new code of practice to replace an earlier approach that faced opposition from the creative sectors.
By Deborah Kirk and Brett Shandler
Latham previously reported on the UK government’s proposal to introduce a new copyright and database exception that allows text and data mining (TDM) for any purpose, provided that the party employing TDM obtains lawful access to the material (June 2022 TDM Proposal). The UK government has now announced that it is abandoning this proposal, and intends to consult with AI firms and rightholders to produce a code of practice to support AI firms to access copyrighted work as an input to their models, whilst ensuring protections on generated output to support rightholders. It has foreshadowed that this code of practice, due by summer 2023, may be followed up with legislation if it is not adopted or agreement is not reached.
The DSA has a broad scope and regulates many aspects of digital services.
By Gail E. Crawford, Jean-Luc Juhan, Susan Kempe-Mueller, Deborah J. Kirk, Lars Kjølbye, Elisabetta Righini, Sven Völcker, Ben Leigh, Victoria Wan, and Amy Smyth
The Digital Services Act (DSA) is a key part of the EU’s digital regulation strategy, which seeks to modernise legal frameworks and create a safer and more open digital environment.
The DSA entered into
The amended bill aims to safeguard freedom of expression whilst still protecting children and adult users in the online environment.
By Gail E. Crawford, Deborah J. Kirk, Alain Traill, and Victoria Wan
The Online Safety Bill (the Bill) was introduced by the UK government on 17 March 2022. The Bill aims to impose obligations on in-scope “user-to-user services” and “search engines” to implement adequate processes to protect users from illegal and harmful online content. Service providers are in scope if they are linked to the UK by either (i) having a significant number of users or targeting users in the UK; or (ii) being accessible by individuals located in the UK and posing a material risk of significant harm to these users. For more information, read Latham & Watkins’ summary of the Bill as initially drafted here and the previous amendments from September 2022 here.
The Bill returned to Parliament on 5 December 2022 with a series of major amendments compared to the previous draft, as detailed in the Written Ministerial Statement on 29 November 2022 and tabled here. The amendments follow criticisms from various stakeholders, including feedback that the obligations relating to “legal, but harmful content” are unclear and/or curtail free speech online and that the obligations relating to children are insufficient to ensure children’s safety online.
The bill has been introduced into the UK’s Parliament with various amendments to the initial draft published in May 2021, reflecting the extensive feedback received and the challenges in reaching a consensus.
By Gail Crawford, Deborah Kirk, Elva Cullen, Alain Traill, and Victoria Wan
In March 2022, the UK government formally introduced the amended Online Safety Bill into Parliament (the Bill). The Bill features a number of substantial amendments to the government’s initial draft of the Online Safety Bill published in May 2021 (the Draft Bill), as explored below. For background on the broader development of the Online Safety Bill, see Latham & Watkins’ blog series, including a post summarising the Draft Bill.
A proposed broad copyright exception for text and data mining that favours AI developers is unlikely to be welcome news for rightholders.
By Deborah Kirk and Brett Shandler
On 28 June 2022, the UK government published its response to its consultation on “Artificial Intelligence and IP: Copyright and Patents”, which commenced in October 2021 (Response).
Among other points,[1] the government has indicated its intention to introduce a new copyright and database exception that allows text and data mining (TDM) for any purpose, provided that the party employing TDM obtains lawful access to the material.
In Lexology’s Getting the Deal Through: Digital Health 2021 (UK) Latham & Watkins considers the key regulatory and transactional issues faced by market players and practitioners.
By Frances Stocks Allen, Oliver Mobasser, Sara Patel, Mihail Krepchev, and Samantha Peacock
The UK has an active digital health market comprising both the private and public sectors. Venture capital funding in the digital health sector has increased significantly in recent years, with the majority of investment appearing to come from private investment firms. However, public financing through IPOs is also on the rise. The COVID-19 pandemic has further heightened the positive and dynamic investment climate for digital health technologies in the UK. In particular, the pandemic has highlighted the need for resilience in healthcare systems, including through digital health solutions. As a result, the pandemic has significantly accelerated uptake of digital health solutions in the UK and related investment opportunities, as well as challenging structural barriers that had previously slowed investment in digital health innovations.
Digital health in the UK is currently governed by a patchwork of different legal regimes, rather than bespoke legislation, while various regulatory and enforcement bodies have jurisdiction over the digital health sector.
The proposals includes fines for non-compliance of up to the greater of £18 million or 10% of a provider’s annual global revenue.
By Gail Crawford, Rachael Astin, Alain Traill, Katie Henshall, and Amy Smyth
On 12 May 2021, the UK government published the Online Safety Bill (the Bill), which aims to establish a new regulatory regime to address illegal and harmful content online, including fines and other sanctions in the event of non-compliance. While further developments and guidance are expected, the proposed regime seemingly will have significant implications for in-scope user-to-user services and search engines.
The Bill follows the publication of the Online Harms White Paper by the Home Office and the Department for Digital, Culture, Media & Sport in April 2019. An initial government response to the consultation was published in February 2020, and a full government response in December 2020. (For more information, see Latham’s blog posts on the White Paper launch; government interim response; and government full response).
This recent CJEU decision raises a number of considerations for content rights holders and for those seeking to link to content online, across both the EU and the UK
By Deborah Kirk, Luke Vaz, and Amy Smyth
Under UK and European laws, the rights of copyright holders include the right to restrict or prohibit reproduction or communication of their original work. Broadly, this means that any such reproduction or communication of the content requires consent from the copyright holder.
In the digital age, it has become increasingly difficult to regulate for this right in practice, with internet users able to replicate and communicate works using a plethora of channels (for instance, re-posting social media content, framing and inline linking of visual and media content). The Court of Justice of the European Union (CJEU) and UK and EU member state national courts have grappled for a number of years with the particular question of whether hyperlinking constitutes communication of the underlying content that it links to (principally in the CJEU cases of Svensson (2014), GS Media (2016), and Filmspeler (2017), and the English courts TuneIn (2021) case) and whether therefore it could constitute an act of copyright infringement if the hyperlinking does not have the consent of the copyright owner.
In VG Bild-Kunst, the latest CJEU case on this topic, the court held that hyperlinking may constitute communication of the underlying content if the rights holder has implemented technical measures to restrict such linking and the linking circumvents those restrictions. The court also held that, for the purposes of restricting linking, a rights holder may impose contractual obligations on a licensee to implement technical measures to prevent such linking. The CJEU’s emphasis in this decision was on the need for effective technical measures to be implemented (or contractually required) to restrict linking, as evidence of the rights holder’s intention to limit its consent to the communication of its content.
The long-awaited update to the e-Commerce Directive proposes new obligations for online platforms and changes to the ‘safe harbours’ from liability for infringing content.
By Jean-Luc Juhan, Deborah J. Kirk, Elisabetta Righini, Thies Deike, Grace E. Erskine, Alain Traill, and Amy Smyth
On 15 December 2020, the European Commission released a set of long-awaited proposals to create a safer and fairer digital space, including the Digital Services Act (DSA) and the Digital Markets Act