• 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.
  • Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
  • In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
  • Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
  • Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
  • We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
  • We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
  • Our regulatory specialists work alongside Kemp Little’s corporate and commercial professionals to help meet their compliance obligations.
  • With a service that is commercial and responsive to our clients’ needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
  • At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
  • We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
  • Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
  • We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
  • We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
  • For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
  • Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
  • The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
  • Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
  • Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
  • We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
  • Our legal professionals work alongside social media providers and users in relation to the commercial, privacy, data, advertising, intellectual property, employment and corporate issues that arise in this dynamic sector.
  • Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
  • Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
  • Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
  • Kemp Little is trusted by some of the world’s leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
  • HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
  • FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they don’t give away to get you started.

Is Uber too advanced for our regulatory frameworks?

In-house analysis: What are the wider implications of the overruling of the ridesharing ban by a German court? Nicola Fulford, privacy and data protection partner at Kemp Little says it is unclear where commercialised-ridesharing fits into the world’s regulatory regimes.

What’s the background to this case?

Uber, the ridesharing app connecting passengers and drivers-for-hire via their smartphones, has not had an easy ride recently. Although initially launched in 2010 with a sole focus on full-sized luxury cars, in 2012 Uber launched a low-cost offering (dubbed ‘UberX’) as an alternative to traditional taxi services. This solution proved popular amongst consumers and, having broken into the taxicab market, Uber has since undertaken a rapid expansion into over 200 cities in 45 countries as at the time of writing. 

Whilst the taxicab industry is highly regulated in most countries around the world, it is unclear where commercialised-ridesharing fits into these regulatory regimes. Operating on the basis that they are unregulated, Uber has met opposition from both taxicab operators and regulators across four continents. Taxicab operators in Germany, France, and England have undertaken mass protests, at the same time as regulators have battled to determine how ridesharing falls within their existing regulatory regimes.

Germany is proving one of Uber’s biggest challenges so far. Uber were banned from operating in Berlin earlier this year through cases brought by the Berlin Taxi Association. Taxi Deutschland then followed suit and last month obtained a temporary nationwide injunction against Uber’s low-cost ‘UberPop’ service for failing to obtain the necessary licences under German law.

However, a little over two weeks after the initial ruling, the Frankfurt Regional Court revoked this injunction and reinstated Uber’s right to operate in Germany.

What led to the original decision being overturned?

In this instance, Taxi Deutschland simply failed to file its claim by the cut-off date. Under German law, a claim of this type must be brought within two months of the date on which the company (in this case Uber) commenced provision of the relevant service in Germany. Uber launched UberPop in Germany in April 2014, around four months before Taxi Deutschland filed its claim.

The merits of Taxi Deutschland’s case were not considered in this hearing, and the court did not make any judgment on whether or not Uber’s services were legal in Germany, although a spokesman for the Frankfurt Regional Court confirmed that the judges were sympathetic to Taxi Deutschland’s arguments that the service competed unfairly with local taxis. Taxi Deutschland has confirmed it will be appealing the court’s decision over the forthcoming month, though a successful outcome will require a good reason for filing out of time.

What is the significance of this decision?

This is a significant decision for Uber. The original judgment not only granted a temporary nationwide injunction, but also imposed:

  • a fine of up to €250,000 per trip if Uber eventually lost the claim, and
  • criminal liability leading to up to six months’ imprisonment for Uber’s German-based employees

In direct defiance of the German injunction and threatened fine, Uber not only continued to provide the UberPop service across Germany but even cut fares in Munich and Berlin by 30% in the days after the decision in order to drive demand; increasing fares and the potential fine. This possibly sizeable fine, along with the criminal liability, has been removed by the court’s overturning of the injunction.

This outcome may also comfort Uber’s drivers who expressed concern that they may be directly liable for the €250,000 fines in light of Uber’s ‘partner’ structure (under which they are not considered employees of Uber). This concern was allayed to an extent by Uber’s confirmation that the injunction targeted the company directly and not its “non-employee ‘partners’” and that it would “stand behind its partners”, but the latest decision provides a conclusive position for the drivers.

The effect of this decision for taxicab operators in Germany, whilst less positive, is equally as significant. By overturning the original decision, Uber is free to continue its expansion outside of the burdensome regulatory regimes to which the taxicab operators are subject. In addition, the cases have raised Uber’s profile within Germany whilst simultaneously weakening the market position of taxicab operators; something which Uber is capitalising on to increase market recognition and share.

How does this impact the ongoing battle between taxicab operators and rideshare providers more generally?

Beyond the legal implications, the original decision held a degree of symbolic significance. Having been delivered shortly after Uber was banned and fined in neighbouring Brussels, the original German judgment lent to the view that a widespread shift in the way that Regulators deal with rideshare service providers was in store. Serving as a much-fought-for step in the right direction, this was welcomed by taxicab operators globally.

However, whilst the latest decision does not address the legality of rideshare services and has not ruled out a shift in regulators’ attitudes, it is still a significant blow to the taxicab industry. Uber’s continued avoidance of meaningful regulatory opposition (and consequential subjection to the burdensome regulations and strict controls placed on traditional taxicab operators) means rideshare companies are able to continue to operate economically-efficient business models that undercut existing taxi services and encourage widespread disruption of the taxi market.

Perhaps the biggest impact, though, is simply that Uber’s unrelenting growth and success in Germany despite the original injunction highlights that there is truly a market for rideshares and other alternatives to taxis; constituting a significantly more sustained threat to the long-term viability of traditional taxicab operations. This will likely intensify the ongoing battle between taxicab operators and rideshare providers. 

What does this say about wider legal issues with disruptive technologies?

New and creative technologies are being used to address consumer concerns and issues with existing markets. The taxi market, for example, is often viewed as saturated; monopolised by only a handful of service providers in certain cities. However, the advancement of technological development has meant that increasingly practical and simplistic solutions that utilise modern infrastructure (like Uber) have been able to satisfy consumer demand and disrupt these otherwise closed markets by reducing barriers to entry.

However, disruptive technologies bring with them certain problems. Saturation in markets is often reached as a result of high levels of regulation that make it challenging for new providers to either enter the market or, once entered, differentiate themselves to obtain the explosive growth necessary to break the saturation in any meaningful way. The advancement of technology creates gaps in laws and regulations, which often cannot keep up with the rapidity of such advancement. Products that are able to truly disrupt a market therefore often do so by taking advantage of these gaps, as we have seen with Uber in the taxi market.

A key issue with this is that often the regulations that are circumvented are put in place for the purposes of consumer protection. Taxicab providers in the UK are required to undergo criminal record and vehicle safety checks before being granted the necessary licences, and must ensure all taxicabs are fitted with a meter to ensure passengers are charged fairly.

Similar positions are adopted under regulations across the United States and Europe.

However, despite companies like Uber considering themselves outside of the taxicab regulations, they are not necessarily unaffected by them. The service generally obtained by consumers using providers that are subject to regulations can create a widespread expectation from the public as to a minimum level of protection or service. Companies entering the market, even beyond regulatory scope, often therefore have to demonstrate to consumers that they operate at the same, if not higher, level than the regulations require in order to gain user trust and, ultimately, market share. Uber, for example, undertakes a rigorous three-step criminal background screening, provide end-to-end insurance coverage, and operate a clear metered charging structure (including providing fare estimates).

What should lawyers take from this latest development?

The obvious point arising from this case is simply that lawyers should always ensure deadlines for filing claims are known and met.

Lawyers should be watching this case for other reasons, though. It remains to be seen whether the world’s regulators will ultimately determine ridesharing apps fall within traditional taxicab regulations. In the meantime Uber is accelerating away. This is a situation where a new technological development has caused such widespread disruption that regulators of a specific industry, in numerous countries around the world, are having to take immediate action. The Uber cases are likely to demonstrate where countries stand in relation to disruptive modern technological solutions, providing a valuable insight that will aid with strategizing and planning for market entrances (and the legal matters associated with such). 

Interviewed by Nicola Laver for Lexis Nexis.

For further information, please contact Nicola Fulford.