• At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
  • Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
  • Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
  • Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
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Assessing the legal implications of the digital single market

The DSM regulation aims to level the playing field between US and European digital services. What must UK businesses do to take advantage?

The European Union (EU) recently unveiled plans for a digital single market (DSM), which will affect all aspects of online business from e-commerce through to copyright rules. Through the subsequent enforcing legislation, the European Commission (EC) hopes to level the playing field between US and European digital businesses while removing the fragmentation and smoothing the user experience of digital services across Europe.

The rapid timetable for implementing the DSM means much will be done in the next 18 to 24 months. The goal is to see EU businesses as market leaders in the digital sphere by 2020 by putting in place the framework to give EU tech talent a better chance to compete against non-EU digital behemoths, such as Google and Facebook, that currently dominate the landscape.

So what should digital businesses be doing now to prepare for this change in regulation and to use it to their advantage?

There are a number of legal challenges to consider. While general principles on intellectual property, telecommunication and data privacy are similar across Europe, the big challenges are implementing a pan-European principle nationally and applying laws that may struggle to adapt to new technologies.

It is a cliche to state that many laws are “analogue in a digital world” – but it is also true. For example copyright laws struggle with format shifting and boundary crossing, as anyone who has tried to stream BBC iPlayer from abroad or move music from one device to another can attest. The journey of shifting older laws into a modern digital environment can feel rough, as we’ve seen with the current EC-driven data privacy laws that were put in place prior to the modern digital society. They are often drivers of individual and business frustration and seen as a block, but they have been fundamental in developing public understanding of personal data and its value. 

What is the focus of the DSM?

The DSM strategy builds on other aspects of the EC’s digital agenda and is built around three pillars that address how businesses could operate with the help of a joined up digital world:

  • Better access to online goods and services across Europe.

  • Creating the right conditions for digital networks and services.

  • Maximising the growth potential of the European digital economy.

The detail includes a focus on things such as:

  • harmonising rules on the purchase of online content – businesses providing online content will benefit by knowing they’ll have only one set of rules to follow to sell across Europe, not varying rules territory by territory.

  • preventing unjustified geo-blocking (the denying of access to websites in other countries) which will impact businesses whose models work on restricted territory dissemination.

  • modernising the copyright framework to deal with the issues raised by mobile devices and increased spend on digital content – issues such as format shifting and post-life longevity will impact disseminated content.

  • reinforcing trust and security in digital services and handling personal data – which will cause all businesses to focus more on the processes and controls that surround their services.

The challenge for UK businesses with digital ambitions is twofold. Firstly, they should look to be involved in the shaping of the subsequent legislation and standards, which will follow on an aggressive timetable (initially planned over the next 18 months) via lobbying and trade associations. For example, by internet providers getting involved in ISPA or online retailers looking to benefit from cross-border commerce joining EuroCommerce, UK businesses can draw on collaboration and support to drive awareness and benefit their business, as well as the UK economy more widely.

Secondly, companies must deliver any digital aspects of their business in a manner optimised to meet the ever-increasing compliance obligations. Gaining expert advice on how to interpret this regulation will enable companies to exploit the opportunities that the increased openness and portability will provide.

Overall, implementing the regulation internationally and quickly is going to be challenging. However, ignoring the fact that the DSM will have an impact on us all, either as consumers or as part of businesses we are involved in, is a significant error. Companies should now start reviewing how they operate with regards to this regulation so they are fully prepared to utilise the changes in legislation.

For more information, please contact Andrew Joint.

This article first appeared in The Guardian Media & Tech Network.