Articles

• Vaciago, Giuseppe / Silva Ramalho, David, The Variety of ISP Liability in the EU Member States, A comparative analysis of the three liability types and their national interpretation in Belgium, France, Italy, Germany, Portugal, Spain and UK under the E-Commerce Directive’s exemption regime, CRI 2013, 33-39
  The exponential growth of e-commerce has given rise to the need to evaluate the effectiveness of Directive 2000/31/EC (E-Commerce Directive) which was adopted when certain services of the Web 2.0 and 3.0 did not yet exist. Whilst it is difficult to criticize the liability exemption regime for Internet Service Providers (ISPs) established by this law, implementation by individual Member States has created great uncertainty, especially for a market where the players almost always operate on an international level. This article will attempt to focus on the general principles established by the E-Commerce Directive with particular reference to liability on the part of the Hosting Service Provider. Following a brief outline of the three key concepts in Article 14 of the E-Commerce Directive (I.), the article embarks on a comparative analysis of how these concepts have been implemented by France, Germany, Italy, Portugal, Spain and the UK (II.). It then concludes with a table presenting a general overview of the implementation of the E-Commerce Directive in all 27 EU Member States (III.).

• Meyer, Stuart / Reasoner, Robin / Patel, Rajiv, The America Invents Act: Two Steps Closer to International Harmonization?, CRI 2013, 39-43
  The final phase of provisions of the America Invents Act became effective on March 16, 2013. This article provides an overview of several significant changes in U.S. patent law introduced by the Act (I.) and addresses two ways in which the Act may bring the United States closer to harmonization with approaches used in other countries. Specifically, this article will discuss changes in what counts as ”prior art" to a U.S. patent application (II.) and will discuss the AIA’s new contested case procedures (III.).

• Geercken, Karl / Holden, Kelly / Rath, Michael / Surguy, Mark / Stretton, Tracey, Irreconcilable Differences? Navigating Cross-Border E-Discovery, How best to understand and deal with the conflict between e-discovery and data protection principles, CRI 2013, 44-55
  Electronically stored information (‘ESI’) such as emails have become the corporate memory and central to fact-finding in lawsuits and investigations, providing an accurate and detailed record of what happened or what was said at any point in time. This also means that companies involved in litigation now have to disclose and produce these electronic communications and documents on short notice to comply with the rules of court governing pre-trial discovery. At the same time, the information stored in mailboxes or on company or even privately owned devices may well contain or be co-mingled with the personal and private data of company employees or other third parties. Europe has a long history of preserving the individual’s right to privacy and has a complex network of legal rules designed to protect it including the restriction against transferring personal data across borders unless special conditions are met. This immediately causes difficulties in international litigation which relies on evidence scattered across jurisdictions. A conflict inevitably arises between the discovery laws of one country and the data protection laws of another. This article examines the challenges that arise when the discovery laws of another country clash with the data protection laws of another and how companies are addressing these challenges by relying on legal mechanisms and technology solutions.In section I. the article provides an overview of the data protection framework in Europe and the discovery rules in the U.K. and U.S. and sets out the legal conflict which arises due to conflicting rights and obligations in these two legal regimes. The article examines in particular the impact of the U.K. Data Protection Act on disclosure rules in civil litigation conducted under the rules of court in England. In Section II., the article discusses the German data protection regime as a prominent example of civil law jurisdictions in the European Union and how it impacts on requests for e-discovery. The article highlights some of the data protection issues that arise and explores the enforceability of e-discovery requests in Europe. Finally, in Section III., the article explores how the conflict between e-discovery and data protection principles can be addressed in practice, especially when it comes to overcoming the prohibition or restrictions on cross-border data transfers. In doing so, the article looks at official guidance from data protection authorities and The Sedona Conference and at legal mechanisms such as obtaining the consent of individuals concerned, reliance on legal exemptions, binding corporate rules and data transfer agreements. The article also considers how technology can be used to facilitate international discovery and reduce the risk of contravening data protection laws.

• CRI 2013, 55-57
• CRI 2013, 57-59
• CRI 2013, 59-60

Updates

• Salaria, Talha, India: Data Privacy Legislation, CRI 2013, 61
• Batalla, Enrique J., Spain: Novelties for Commercial E-Communication, CRI 2013, 62-63

About the Authors

• About the Authors, CRI 2013, 63-64