Table Of ContentE-Commerce and Convergence:
A Guide to the Law of Digital Media
Fifth Edition
E-Commerce and Convergence:
A Guide to the Law of Digital Media
Fifth Edition
Susan Singleton, LLB
Solicitor, Singletons
Singletons is a London firm of solicitors specialising in commercial, information
technology, intellectual property, data protection and competition law and is
authorised and regulated by the Solicitors Regulation Authority.
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Foreword
When the fourth edition of E-Commerce: A Guide to the Law of Electronic Business was
published in 2011 the impact of the internet on the lives of individuals had increased
substantially. However people tended to use personal computers and laptops to
access the internet. The biggest change in the last ten years since then has been the
movement from computers to sophisticated mobile telephones – the iPhone and
the like – both here in the UK and across the globe, and the use of electronic devices
to view films and other online content.
The 2020 global coronavirus (COVID-19) pandemic has quickened the pace of
change to online working and home working in many sectors and countries, perhaps
achieving in 12 months what might in less extreme times have taken ten years.
Accordingly, the publication of this e-convergence text is timely. While some sections
pay homage to its e-commerce origins (eg when looking at online contracting), this
book, like the previous edition, covers many more issues than just that. Its central
aim is to explain how a range of new and existing law is interpreted in the context
of digital media. While many of these laws are well known and well examined,
they are not always considered in the context of digital content and delivery. As
the technology has changed and converged, the focus of the book has also had to
change.
Increasingly, businesses are seeking to develop an interactive relationship with their
customers. This book takes the full range of legal issues relevant to digital content
and explains them in that context. It is necessarily a broad sweep of law, but it has
been taken from my experience and that of the writers of earlier editions in advising
on these issues.
Susan Singleton
Author, E-Commerce: A Guide to the Law of Electronic Business, fifth edition
Solicitor,
Singletons, Solicitors
Preface
What is e-convergence?
‘E-convergence’ means the convergence – the coming together – of the internet,
information and communications technologies, content, mobile technologies,
broadcasting and related services and products.
This convergence is driven first by technology change and secondly by consumer
behaviour. At the heart of the technology change has been the spread of internet-
protocol technologies. Perhaps it is clearer to talk about ‘digital content delivery
convergence’ – data, text, voice and moving pictures all now able to share a
common delivery platform.
Where technology leads (eventually) the law will follow. Traditionally, laws and lawyers
relating to electronic delivery platforms and content were discrete specialisations.
Lawyers were (and still are) called ‘film’ lawyers, ‘telecoms’ lawyers, ‘information
technology’ lawyers and of course not forgetting ‘e-commerce’ lawyers. All of
these lawyers also needed to have a good knowledge of intellectual property laws,
especially copyright and trade mark laws.
These distinctions are becoming more and more blurred and less and less relevant.
What sort of lawyer do you call yourself when you have to advise on advertising as
it relates to video-on-demand? More importantly, what skills and knowledge do
you need to advise, for example, a rights holder streaming audiovisual content or
if you advise a business such as Facebook, Instagram, Twitter, Whatsapp, TikTok or
Snapchat?
This book is an attempt to weave together previously disparate legal disciplines and
provide guidance across a range of legal topics. Its focus is on how multiple laws
– copyright, data protection, advertising regulation – apply to digital content. The
book also recognises that the digital world has become ever-more central to the
procurement and delivery of products and services in physical form. Accordingly,
it reviews the legal issues around contracting digitally. The COVID-19 pandemic
in 2020 also quickened the pace of change in relation to movement to remote
working, video calls on platforms such as Zoom and Teams, electronic shopping and
electronic signatures, which even prior to 2020 were increasingly extensively used.
Who should read this book?
This book is aimed at both in-house counsel and commercial executives (in
particular finance directors, marketing directors and commercial directors). Its key
aim is to highlight issues which may not always be readily apparent to those who
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Preface
may practise in a content area. For example, a film lawyer or executive will be very
familiar with copyright issues but may not be familiar with the AVMS Directive and
how this may affect a move to video-on-demand. Those familiar with content-
based issues may not be aware of the data protection issues which are becoming
increasingly important.
While the book will be of particular interest to content businesses and online
businesses, it is relevant to any business looking to expand in the online space. The
book covers issues such as domain names, key words and contracting online which
are important to any ‘bricks and mortar’ business trading online.
Date of law and Brexit
The law in the book is accurate as at 1 January 2021. In the ten years since the fourth
edition, e-commerce has become even more a feature of the lives of most people.
The law moves rapidly in this area and certain sections of the book will need regular
updating. Readers should always check the latest position.
While the book reports on English law only, wherever possible the authors have
sought to flag key issues in other jurisdictions. The UK left the EU on 31 January
2020, so where relevant the post-Brexit position is set out in this fifth edition and
the position in the UK and in the EEA after the post-Brexit transitional period ended
on 31 December 2020 is described.
Earlier editions
Solicitors Hammond Suddards (now Squire Patton Boggs) are responsible for
the four earlier editions of this book. In 1999 the first edition was published by
Butterworths as E-commerce: A Guide to the Law of Electronic Business written by
Hammond Suddards’ lawyers Stephen D York and Ken Chia (Mr Chia now being
at Baker McKenzie, Singapore) just as the internet was becoming prevalent. The
second edition followed quickly in 2000. Lexis Nexis published the third edition
in 2002 then edited by Robert Wegenek, Jonathan Moore and Ged O’Neill, again
then all of Hammond Suddards. The fourth edition was published under the current
book title by Bloomsbury Professional in 2011 edited by Mike Butler then of Squire
Sanders Hammonds (now lecturer at the University of Law, previously known
as the College of Law) and his then colleagues. These earlier writers and editors
are responsible for the structure and much of the text of the book. This strong
foundation has been worked on and updated for the fifth edition published in 2021
by the current author, Susan Singleton of Singletons Solicitors, to reflect changes in
the law over the last ten years since the fourth edition was published. There have
been many such changes over the last decade, from the UK leaving the EU to new
laws on distance selling and data protection and much else.
The chapters
The book is broken up into ten chapters each of which contains a ‘key message’
summary at the end of the chapter (other than Chapter 1). This summary is
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Preface
principally aimed at readers coming to these issues for the first time, as opposed to
more seasoned campaigners in this space. The following is a brief summary of each
of the chapters:
Chapter 1 (Technological convergence): This chapter contains a description
of the technologies which have driven convergence and those which are now
used to deliver digital content. In particular, the reader’s attention is drawn to
PARAGRAPH 1.8 which introduces a useful description of the different types of
technologies (eg it explains the difference between downloading and streaming).
Chapter 2 (Digital rights): This chapter provides a detailed description of
copyright, the foremost right to be considered in the context of digital content. The
chapter contains practical guidance on protecting copyright works and contains
an interesting discussion as to how infringements may actually in some cases be
revenue enhancing. Finally, it considers the Digital Economy Act 2017 and mentions
the EU 2019/790 Copyright Directive (implementation date 21 June 2021 which is
after the UK left the EU). The UK has chosen not to implement the Directive.
Chapter 3 (Brands): The bulk of this chapter sets out in detail how the domain
name system works and explains trade mark laws in summary terms. The chapter
also contains a very useful description of the issues which arise with respect to
keyword searching and the effect on brand owners of Google’s AdWords’ policy.
Chapter 4 (Data in the digital world): This is a critical chapter. It explains how
the collection of data through the use of technologies (eg cookies) is becoming
increasingly prevalent and how both existing data protection laws in the Data
Protection Act 2018 (and UKGDPR) and sector-specific laws have an impact on this
use. It also sets out the specific rules relating to electronic direct marketing known
as PECR which are due to be updated in 2021/22.
Chapter 5 (Digital marketing): Digital marketing covers a wide range of
electronic activities from online advertising to paid-for search. This chapter looks
at the types of industry regulation and outlines the CAP Codes administered by the
Advertising Standards Authority. It also looks in detail at comparative advertising
and the rules around sales promotions.
Chapter 6 (User-generated content and social media): The ability of
consumers to post comment (and copyright infringing material) is the hallmark of
Web 2.0. This chapter looks at the specific issues raised and in particular the defences
available to ISPs and website operators to issues such as defamatory postings.
The chapter considers how brand owners can mitigate risks when exploiting user
generated content and whether or not to moderate online content. In the ten years
since the fourth edition was published there has been a regular battle between those
wanting more internet freedom with little or no liability imposed on platforms which
simply enable free speech and in the words of one judge are merely providing a
‘passive wall’ on which consumers can post their comments and those who want to
control, curtail and censor the internet.
Chapters 7 and 8 (AVMS Directive and Video-on-demand): These two
chapters should be read together. Chapter 7 outlines the reasons for and provisions of
the AVMS Directive (as amended, in the UK, by Audiovisual Media Services Regulations
2020 (SI 2020/1062)) in regulating ‘television-like’ services provided over the
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