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Sunday, June 27, 2010
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The Article 29 Working Party, the European Union data protection advisory body, issued an interesting opinion on online behavioral advertising,  i.e. the tracking of users when they surf the Internet and the building of profiles over time, which are later used to provide them with advertising matching their interests. Rules on behavioral advertising are relevant for (i) ad network providers, i.e. those connecting publishers with advertisers (e.g. the major search engines); (ii) advertisers, i.e. those promoting a product/service to a specific audience; and publishers, i.e. websites owners looking for revenues by selling space to display ads. In particular, the Article 29 Working Party focused its attention on the usage of cookies or similar devices and on the data collected through them and stated: 
  • cookies often entail the processing of personal data;
  • ad network providers, publishers and advertisers can all act as data controllers and therefore (depending on the activity performed) are responsible for the compliance of the processing of the personal data collected through the cookies  and other sources (or transferred to thrid parties) depending on the activity performed; 
  • Art. 5(3) of the E-Privacy Directive requires that ad network providera - before the cookie is placed/the information stored in the user’s terminal is collected - (i) provide users with a clear and comprehensive privacy policy outlining the data processing performed and compliant with the EU Privacy Directives; and ii) obtain the users' consent to the storage of or access to information on his or her terminal equipment.
In this context, the Article 29 Working Party puts relevant restrictions to the possibility to give such consent through mere browser settings requiring ad network providers to create prior opt-in mechanisms (no mere opt-out) implying an affirmative action by the data subjects indicating their willingness to receive cookies or similar devices and the subsequent monitoring of their surfing behavior for the purposes of serving tailored advertising. It will not be necessary to request consent for each reading of the cookie (but just on the first occasion), but data controllers should: i) limit in time the scope of the consent (i.e. requiring it again after a period of time e.g. one year); ii) offer the possibility to revoke it easily and iii), create visible tools to be displayed where the monitoring takes place.
Even if the opinions of the Article 29 Working Party are generally not binding, they represent a relevant point of reference for the interpretation of local privacy laws. Indeed, not only ad network providers, but any publishers i.e. any websites from which cookies are installed on users' terminals should take into account the privacy limitations identified in the opinion. 
If you want to discuss the implications for your business of the abovementioned opinion, feel free to contact me, Giulio Coraggio.
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Friday, June 25, 2010
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The Italian Criminal Court of Cassation has issued an interesting decision against two resellers of gaming consoles selling devices, the so called "modchips", aimed at removing the technological measures of protection embedded in gaming consoles by the relative manufacturers. 
Article 171-ter, letter f-bis, of Italian Copyright Law, implementing the Copyright Directive 2000/29/EC, sanctions with the imprisonment up to 3 years and with a fine up to € 15,493 any person that to gain profit:

manufactures, imports, distributes, sells, rents, assigns on any basis, advertises for sale or rental, or possesses for commercial purposes devices, products or components or the provision of services which either 
  • have as primary purpose or commercial use the circumvention of any effective technological measure i.e. measures of protection adopted by copyright holders limiting or blocking the unauthorised usage of the copyright protected material through its encryption, distortion or any other kind of transformation or of a mechanism of control of the produced copies; or
  • are primarily designed, manufactured or adapted with the purpose of circumventing such measures.

The Court held that the conduct undertaken by the resellers of modchips was meeting the requirements of the abovementioned crime as this provision is applicable both when copyright holders embed the technological measures of protection in the games themselves and when such measures are incorporated in the gaming consoles. However, the Court clarified that scope of the provision is limited to the cases when it is possible to prove that the devices have as a primary purpose the circumvention of such measures of protection. 
This decision has been welcomed by console manufacturers as the Court of Cassation has finally clarified its position on the matter. 
Do you want to know more details on the above? Please contact me, Giulio Coraggio.
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Monday, June 21, 2010
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This is to inform you about a very interesting conference named “Virtualizzazione e Cloud Computing: rischi ed opportunitità” (Virtualization and Cloud Computing: risks and opportinuties) that will be held on the 23rd of June 2010 in Milan at Palazzo Turati. The conference will see the participation of world famous lecturers, managers and attorneys.
I believe it is a great opportunity (also because the entrance is free) to get to know better a topic that is extremely actual especially during a period of financial difficulties. Indeed, the panel will discuss the risk and opportunities arising out of this practice for both providers of IT services and companies interested in implementing cloud computing systems.
Do you want to know more about the conference? Please contact Graziella Furci.
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Wednesday, June 16, 2010
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The Court of Milan issued an interesting decision on a topic that is very “hot” especially now during the Football World Cup. Sky Italia, the holder of the copyrights on the broadcasting of the matches of the Italian football championship, brought a claim against the website “tvgratis.net” that provided the links and software necessary to access to Chinese websites stream broadcasting such football matches in breach of Sky Italia’s copyrights and against Telecom Italia, the Italian telecom incumbent, providing access to such website.
The court held that the website “tvgratis.net” was contributory liable for the breach performed by the Chinese website because it had provided the tools allowing the access to the copyright protected material. On the contrary, the court applied the principles set out in the E-Commerce Directive as implemented in Italy and declared that Telecom Italia was not liable for giving access to breaching contents.
It would be interesting to see what the outcome of this decision would have been in other jurisdictions, if you have your view on that just post your comment or send an email to me, Giulio Coraggio.
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Thursday, June 10, 2010
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The Administrative Court of Lazio Region has issued an interim suspension of the efficacy of the Italian decree on poker cash games and casino games following a claim from Microgame, one of the main Italian gaming operators (not to be confused with Microgaming)
Based on the information currently available on the press, Microgame has challenged the legitimacy of the decree on cash games and casino games - as according to them - the Italian Gaming Authority would have introduced substantial amendments to the draft decree that had been notified to the European Commission. On the contrary, according to the Italian Gaming Authority the extension of the provisions of the decree had been agreed with the European Commission and was based on their requests.
The hearing where the dispute will be discussed in its merits will be held on the 13th of October 2010 which means that the efficacy of the decree will be suspended at least up to such date and therefore the launch of these new games will be further postponed.
This bad news provides new entrants in the market with a longer term to make their platforms  compliant with the requirements prescribed by Italian law bearing in mind that poker cash games and casino games have never been marketed in Italy and therefore a completely new gaming market is about to come. 
Do you need more details on the above? Feel free to contact me, Giulio Coraggio
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Tuesday, June 8, 2010
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Once again following the recent Bwin v. Santa Casa decision, the European Court of Justice has declared an European gaming monopoly compliant with the EU principles to provide services in two decisions involving Betfair and Ladbrokes against the Dutch gaming monopoly.
To give you a but of background information, Dutch legislation in relation to games of chance is based on a system of exclusive licenses under which only one license is granted in respect of each of the games of chance authorized and the offering games of chance interactively via the internet in the Netherlands is completely banned.
De Lotto is a non-profit-making foundation holding a license for the organization of sports-related prize competitions, the lottery and numbers games and challenged the offering by Ladbrokes and Betfair of games to Dutch residents in absence of the required license.
The ECJ was involved in relation to the compliance of the Dutch exclusive license system with the EU principle to provide services and held that:
Article 49 EC must be interpreted as not precluding legislation of a Member State, such as the legislation at issue in the main proceedings, under which exclusive rights to organize and promote games of chance are conferred on a single operator, and which prohibits any other operator, including an operator established in another Member State, from offering via the internet services within the scope of that regime in the territory of the first Member State”.
Moreover in the Ladbrokes case the court added:
“it is for the national court to determine whether unlawful gaming activities constitute a problem in the Member State concerned which might be solved by the expansion of authorized and regulated activities, and whether that expansion is on such a scale as to make it impossible to reconcile with the objective of curbing such addiction”.
This decision seems to be a further confirmation that until the gaming legislation of the EU Member States will be harmonized, the European Court of Justice is likely to support local gaming monopolies and licensing regimes denying the mutual recognition of other EU licenses as the Italian regime that has been recently approved by the EU. Operators are likely to obtain a local license in each EU Member State where it is possible to apply for it and such approach is likely to lead to the end of the current .COM websites. 
Do you want to share your thoughts on the above? Feel free to contact me, Giulio Coraggio
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