Dentons US LLP

02/11/2021 | News release | Distributed by Public on 02/11/2021 03:39

TMT Bites - 21th issue

February 11, 2021

Which are the top five digital trends we can expect will lead discussions in 2021? AI, data transfers and e-Privacy will certainly be hot topics but much more is on the table. Our TMT team tried to briefly summarize where we are heading!

Trend no.1: AI & Robotics

Artificial Intelligence ('AI') has been one of the key trends during year 2020, and there is no sign of any slowing down in sight.

European Union is particularly active, with seven major measures on AI regulation taken in year 2020 (to access our articles see here and here) and a new Commission proposal expected in Q1 of 2021, without mentioning the public hearing on 'AI and Green Deal' of the European Special Committee on Artificial Intelligence in a Digital Age held on January 27, 2021. Local DPAs are no less active when it comes to AI. Among the most recent contributions, the Spanish Data Protection Authority published a new guide on AI-based processing of data, aiming to bring more clarity to the Regulation EU no. 2016/679 ('GDPR') requirements for auditing an algorithm.

All the while, the rest of the world is not standing by. UAE are accelerating their AI Strategy 2031, China is ready to push once again the boundaries of 'Smart Governance' with the much-discussed Social Credit System 2021, and Australia aims to further its AI Action Plan after the successful call for consultation launched the past November.

On February 19, 2021, our Giangiacomo Olivi will address AI trends in a webinar organised by Insubria University, together with Barbara Carminati, Barbara Pozzo, Paolo Benanti, Andrea Renda. We will discuss the benefits and the risks of Artificial Intelligence with a holistic approach, taking into account the business perspectives, laws and ethical implications. This webinar is in English, to register you can find a link here.

Trend no.2: Regulation of online platforms

October 20, 2020 was a key date for the EU Digital Market. The EU Parliament adopted the first set of rules for AI in the fields of ethics, intellectual property rights, and liability. It also laid the basis for the long-advocated enactment of the Digital Services Act ('DSA') and the Digital Markets Act ('DMA').

What's at stake for digital platforms? As we already had the opportunity to discuss, there is a new liability regime - hence a higher expectation of accountability - especially for large providers. In this respect, the policy discussion will certainly focus on a number of issues: in particular, how to identify online gatekeepers that should be subject to an ex-ante regulation, what conduct should be outlawed for those gatekeepers, what obligations should be placed on them (such as content filtering, data portability and inter-operability), and how such innovative regulations should be enforced.

Trend no.3: Data transfers

Although the final words of the Court of Justice of the European Union ('CJEU') in Schrems (2015) are still fresh in our minds, 2020 has shown us that those words were everything but final. In the newest chapter of this saga, known as Schrems II (see our analyses here and here), the CJEU declared the unlawfulness of EU-US data transfers under the Privacy Shield and suggested that any transfer should be properly assessed. Therefore, how to transfer personal data to third countries?

Given the uncertainty of the legal framework, the European Data Protection Board and many local DPAs are trying to solve the impasse, by providing clarifications and recommendations (last but not least, the 'Joint opinions of the EDPB and EDPS with regards to the new sets of SCC', see here). Nonetheless, organizations should not expect this to be a straightforward operation (see our analysis, here) and the extensive due diligence requirements may cut off many smaller entreprises.

Further clarifications are yet to be provided by the EU Authorities. Plus, it will be interesting to see how extra-EEA Authorities (especially in the UK and US) will react.

Trend no.4: Copyright

The evolution of digital technologies has changed the way copyright-protected contents are produced, distributed and exploited worldwide. Consequently, the EU Digital Single Market strategy was bearer of significant changes, culminating (in April 2019) in a new Directive on copyright. Now, with the directive coming into force and becoming fully binding, it is time to assess the new copyright Directive in action.

Among the many challenges expected, concerns have already been raised on the new rights for press publishers and the exceptional duties for content-sharing providers. With the deadline for domestic implementation drawing near, the current state of play appears evermore precarious. Several Member States (including Poland and UK) stand by their willingess to defect enforcement, and the U.S. Copyright Central Office declared that it will not consider it advisable to update the Digital Millennium Copyright Act taking into account the European changes. Most likely, as it is often the case when legislative impasses occur, a judicial intervention (or engineering?) by the CJEU will not be far off.

Trend no.5: Digital marketing and e-Privacy

This trend comprehends multiple topics. First of all, the transformation of businesses in the field of digital marketing, that arises a multitude of legal implications (as thoroughly discussed here and here). Much is expected by the competent Authorities on this topic in year 2021.

Also, the cookie legislation is still a hot topic. Several guidelines on the use of cookies and other tracking tools have been adopted over 2020 by national DPAs (the final guidelines for Italy should be published very shortly), partly to make up for the delays in the adoption of the ePrivacy Regulation (find here the latest version of the ePrivacy Regulation). As the issued guidelines not always offer a consistent approach to the stakeholders, it remains of the utmost importance to finalize the ePrivacy Regulation: among the others, the applicable legal bases for installing cookies is currently under discussion as well as the survival of third-party cookies (see our article on blocking of third-party cookies).

Furthermore, another key topic is the processing of personal data within the digital advertising ecosystem. Indeed, some commentators asked for additional measures to address the control exercised by the so-called tech giants over the advertising ecosystem. The ability of such players to collect significant quantities of data should not lead to a misuse. More in particular, commentators asked for specific measures to prevent misuse of large databases and abuse of dominant position: all eyes are on competition authorities and DPAs, that seem to have started multiple proceedings aimed at clarifying the 'behind the scenes' of the digital advertising's processing activities. Year 2021 will certaintly mark a turning point for the data economy.

We will be addressing all the above trends throughout 2021.

Do you have more questions, or do you want to share your thoughts on this article? Contact our Dentons Italy TMT Team at [email protected], and do not forget to sign up to our TMT Bites Newsletter and to follow!

This article has been co-authored by Giangiacomo Olivi ([email protected]), Fabia Cairoli ([email protected]), Cecilia Canova ([email protected]) and Salvatore Rocco ([email protected]).