Exclusive Q&A On Technology, Media & Telecommunications with Purvi Parekh
Who are the main regulators and what are the key legislations that apply to technology, media and telecommunications in your jurisdiction?
There is a lot of overlap in the regulatory bodies that monitor telecoms, media and the internet in the UK. The key regulators are the UK department for culture and sport (DCMS), the office of Communications (Ofcom) and the Information Commissioner’s office (ICO). The competition regulators such as the Competition and Markets Authority (CMA) and the Competition Appeal Tribunal (CAT) also play key regulatory roles. A level down from this are bodies such as PhonepayPlus and the Advertising Standards Authority who look at more specific services/advertising etc across the TMT sectors.
The Communications Act 2003 is the primary piece of legislation that media and telecom lawyers will look to, but there is a whole host of horizontal legislation (e.g. the Data Protection Act, consumer legislation, wireless telegraphy legislation etc) that also applies.
Have there been any recent regulatory changes or interesting developments?
Where to start! It has been a time of a lot of change, in the main driven by market consolidation. Just to give a quick snapshot right now, the UK’s biggest fixed line player (BT) is looking to acquire EE (the largest mobile operator by market share). The £12.5BN deal only just got provisional clearance by the CMA. At the same time O2 (owned by Spain’s Telefonica) and Three (owned by Hutchison Whampoa) are seeking approval to merge their businesses. If this gets approved, the proposed (£10.2bn) deal would reduce the number of UK mobile networks from four to three.
The other hot topic right now is the invaliding of the safe harbour principle. Just a few weeks ago the Court of Justice for the EU ruled that safe harbour no longer gave businesses an assurance that if they transferred personal data to members in the US, they would satisfy the legal requirement for personal data transferred outside the EU to be adequately protected.
There is also a lot happening on the regulatory front. Ofcom are consulting on many different areas which all go in the direction of supporting more innovation in services and products (like IoT), not compromising competition and making more licence exempt/licence free spectrum. They are undertaking their second strategic review of telecoms right now; the first led to the functional separation of BT and the creation of BT Openreach.
What problems do you foresee relating to wearable tech, 3D printing and other new technologies?
For wearable tech the core issue comes down to data. For IoT services in general the creation of data brings data privacy and security concerns at both a user level and a regulatory level. Although we are talking about small data flows for wearable tech, it still leaves a digital trail which can be monitored and exploited. By the same token whilst a specific silo of information from one wearable device may appear harmless, putting silos together across the internet of things ecosystem can provide a detailed insight into a person’s life, opening them up to user profiling or tracking.
For 3D printing, data is important but it is also about internet piracy and protection and enforcement of intellectual property. There are myriad of potential issues around IP ownership, rights to copy, to distribute etc.
Can you talk us through the development & approval process for new products entering the market?
There will come a point for any new product lifecycle at which the legal environment must be understood and compliance ticked off as having been achieved. Commonly this happens during development, sometimes a little later at pre-launch, but in any event will be dealt with in different ways depending on the nature of the product.
Take the launch of a new voice product for example. From a regulatory perspective it is highly likely that the product will be caught by the definition of an “electronic communications service” under UK law and regulated as such. The rules for compliance are pretty clear and as such the work in the development phase will be about building the product in a way that complies with requisite conditions around topics such as emergency service access, number portability and the like.
Take another example of a wearable medical device. Medical devices in themselves are a carefully regulated and sensitive area. A key part of the development phase will be just about ensuring the safety and reliability of that wearable as well as setting up processes to ensure the traceability of devices through the supply chain.
About 70% of all infringement actions in patent litigation in Europe are brought before German courts. How do you determine which jurisdiction patent litigation should be filed in?
In many cases there are a choice of venues available for bringing a patent suit. Germany is high because it is “perceived” to be affordable and patent friendly” i.e. meaning that there is a low probability of invalidating the patent and a greater likelihood of granting injunctions, which can be achieved before validity as determined at all.
In general the main factor that is considered for litigation is the domicile of the defendant, although there are special rules exceptions to this rule.
What are the main areas of media law your clients require specialist advice and assistance with?
Media is a regulated but hugely growing and exciting area. In the sector our clients are seeking advice on everything from M&A, media fund formation, litigation, specialised media lending and financing, and domestic and cross border tax structuring. On the commercial side the work spans channel launches, output deals, content production and carriage arrangements, media buying arrangements, talent deals and defamation and copy clearance advice. On the film and TV financing side in particular, dramas are popular at the moment and we are seeing more complex financing arrangements to support these.
What are the latest trends in the battle against piracy?
Tis is another area where there is a lot of activity: the latest trends are (i) increased reliance on “site blocking” orders i.e. so that the major domestic fixed line ISPs are required to ensure that overseas pirate sites are not visible to consumers. We have seen this remedy grow a lot internationally over the last year or so, including places like Singapore and Hong Kong changing their laws to introduce similar remedies; (ii) Ongoing pressure on google and other search engines to make sure pirate sites either don’t appear in searches or are ranked lower; (iii) a focus on so-called “follow the money” initiatives which seek to make it harder for pirates to monetise their services.
This week also saw the launch (finally) of the end-point of the Digital Economy Act process and the launch of the limb on consumer education. It was launched through the “get it right (from a genuine site)” campaign, the TV ad for which had its first showing during the weekend XFactor results. The second limb (of warning letters to the account holders whose IP addresses are used regularly to access pirate material) is expected to start some time next year.
With reference to joint ventures, acquisition, internal R&D and/or venture funds, can you outline the available expansion opportunities for major telecom operators in the current market?
The telecom operators have had a difficult time in recent years with cost pressures and regulation driving profits down. However the rapid migration of the move to data services is an opportunity for the telcos to extract greater value from their networks; similarly, capturing and monetising new revenue streams around products in ecosystems such as mobile payments, machine to machine, cloud computing, quadplay offerings, are all opportunities for growth and expansion.
Acquisition, joint ventures and the like are all ways to achieve this but strategic partnership arrangements (with the right partners) can also help the telcos achieve similar growth.
What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?
Whereas change used to be consumer led (indeed, the increased dominance of the smartphone isn’t going away) we are also seeing more businesses driving change. Contactless payments, IoT, drones, 3D printing will be talked about a lot. On the telecoms side faster broadband will remain a key theme.
In the UK, the output of Ofcoms second strategic review of the market and the conclusion of the proposed market consolidation between mobile players and fixed line players have the capability to fundamentally change market dynamics.
Purvi Parekh Purvi is a Partner and Head of Olswang's International Telecoms practice.
Purvi is a telecoms and technology lawyer. Her telecoms experience spans all kind of network and platform, including mobile, fixed line and satellite. She has advised on some of the most innovative projects affecting the telecoms market today, including network sharing (active and passive, light and deep), MVNOs, M2M, mobile payments, convergence and 4G/LTE. Purvi also advises on the regulatory aspects of telecoms work. Her experience in telecoms regulation includes proposals for the EU single market, network access, MVNO regulation, leased lines, net neutrality and numbering & portability issues.
Purvi can be contacted on +44 20 7067 3524 or by email at firstname.lastname@example.org