On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics. Sam Jungyun Choi, Associate in Covington’s Technology Regulatory Group, and Anna Oberschelp, Associate in Covington’s Data Privacy & Cybersecurity Practice Group, discussed global regulatory trends that
UK Court Rules on Copyright over Software Developed Whilst Working at Home
In Penhallurick v MD5 Ltd [2021] EWHC 293 (IPEC) the Court held that the copyright in various literary works relating to software Mr. Penhallurick created during his tenure with former employer MD5 belonged to MD5. The Court found that the works were created in the course of Mr. Penhallurick’s employment with the result that MD5 was deemed the owner of the works (under the Copyright, Designs and Patents Act 1988), despite the fact that some of the work was done from Mr. Penhallurick’s home, outside normal office hours and using his own computer.
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UK Government Plans for an Online Safety Bill
In April 2019, the UK Government published its Online Harms White Paper and launched a Consultation. In February 2020, the Government published its initial response to that Consultation. In its 15 December 2020 full response to the Online Harms White Paper Consultation, the Government outlined its vision for tackling harmful content online through a new regulatory framework, to be set out in a new Online Safety Bill (“OSB”).
This development comes at a time of heightened scrutiny of, and regulatory changes to, digital services and markets. Earlier this month, the UK Competition and Markets Authority published recommendations to the UK Government on the design and implementation of a new regulatory regime for digital markets (see our update here).
The UK Government is keen to ensure that policy initiatives in this sector are coordinated with similar legislation, including those in the US and the EU. The European Commission also published its proposal for a Digital Services Act on 15 December, proposing a somewhat similar system for regulating illegal online content that puts greater responsibilities on technology companies.
Key points of the UK Government’s plans for the OSB are set out below.
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UK Information Commissioner’s Office Publishes Draft Accountability Framework Tool
On 10 September 2020, the UK Information Commissioner’s Office (“ICO”) published its beta-phase “Accountability Framework” (“Framework”). The Framework is designed to assist organisations, of any size and across all sectors, in complying with the accountability principle under the GDPR and in meeting the expectations of the ICO.
The Framework will help those within organisations who are responsible for implementing data protection compliance strategies. The ICO envisages that organisations will use the Framework in conjunction with other relevant guidance and materials available from the ICO. The ICO emphasises that each organisation must be mindful of its own circumstances when managing data protection risks, and that a “one size fits all” approach should not be adopted.
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UK ICO publishes guidance on Artificial Intelligence
On July 30, 2020, the UK Information Commissioner’s Office (“ICO”) published its final guidance on Artificial Intelligence (the “Guidance”). The Guidance sets out a framework for auditing AI systems for compliance with data protection obligations under the GDPR and the UK Data Protection Act 2018. The Guidance builds on the ICO’s earlier commitment to enable good data protection practice in AI, and on previous guidance and blogs issued on specific issues relating to AI (for example, on explaining decisions on AI, trade-offs, and bias and discrimination, all covered in Covington blogs).
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UK Government Publishes Initial Consultation Response on the Online Harms White Paper
On February 12, 2020, the UK Home Office and Department for Digital, Culture, Media & Sport published the Government’s Initial Consultation Response (“Response”) to feedback received through a public consultation on its Online Harms White Paper (“OHWP”). The OHWP, published in April 2019, proposed a comprehensive regulatory regime that would impose a “duty of care” on online services to moderate a wide spectrum of harmful content and activity on their services, including child sexual abuse material, terrorist content, hate crimes, and harassment.
While the Response does not indicate when the Government expects to introduce proposed legislation, it provides clearer direction on a number of aspects of the proposed regulatory framework set out in the OHWP, including:
Centre for Data Ethics and Innovation publishes final report on “online targeting”
On February 4, 2020, the United Kingdom’s Centre for Data Ethics and Innovation (“DEI”) published its final report on “online targeting” (the “Report”), examining practices used to monitor a person’s online behaviour and subsequently customize their experience. In October 2018, the UK government appointed the DEI, an expert committee that advises the UK government on how to maximize the benefits of new technologies, to explore how data is used in shaping peoples’ online experiences. The Report sets out its findings and recommendations.
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AI/IoT Update: UK’s Information Commissioner issues opinion on use of live facial recognition technology by police forces
On October 31, 2019, Elizabeth Denham, the UK’s Information Commissioner issued an Opinion and an accompanying blog urging police forces to slow down adoption of live facial recognition technology and take steps to justify its use. The Commissioner calls on the UK government to introduce a statutory binding code of practice on the use of biometric technology such as live facial recognition technology. The Commissioner also announced that the ICO is separately investigating the use of facial recognition by private sector organizations, and will be reporting on those findings in due course.
The Opinion follows the ICO’s investigation into the use of live facial recognition technology in trials conducted by the Metropolitan Police Service (MPS) and South Wales Police (SWP). The ICO’s investigation was triggered by the recent UK High Court decision in R (Bridges) v The Chief Constable of South Wales (see our previous blog post here), where the court held that the use of facial recognition technology by the South Wales Police Force (“SWP”) was lawful.
The ICO had intervened in the case. In the Opinion, the Commissioner notes that, in some areas, the High Court did not agree with the Commissioner’s submissions. The Opinion states that the Commissioner respects and acknowledges the decision of the High Court, but does not consider that the decision should be seen as a blanket authorization to use live facial recognition in all circumstances.
ICO publishes blog post on AI and trade-offs between data protection principles
On July 25, 2019, the UK’s Information Commissioner’s Office (“ICO”) published a blog on the trade-offs between different data protection principles when using Artificial Intelligence (“AI”). The ICO recognizes that AI systems must comply with several data protection principles and requirements, which at times may pull organizations in different directions. The blog identifies notable trade-offs that may arise, provides some practical tips for resolving these trade-offs, and offers worked examples on visualizing and mathematically minimizing trade-offs.
The ICO invites organizations with experience of considering these complex issues to provide their views. This recent blog post on trade-offs is part of its on-going Call for Input on developing a new framework for auditing AI. See also our earlier blog on the ICO’s call for input on bias and discrimination in AI systems here.
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ICO Launches Public Consultation on New Data Sharing Code of Practice
On July 16, 2019, the UK’s Information Commissioner’s Office (“ICO”) released a new draft Data sharing code of practice (“draft Code”), which provides practical guidance for organizations on how to share personal data in a manner that complies with data protection laws. The draft Code focuses on the sharing of personal data between controllers, with a section referring to other ICO guidance on engaging processors. The draft Code reiterates a number of legal requirements from the GDPR and DPA, while also including good practice recommendations to encourage compliance. The draft Code is currently open for public consultation until September 9, 2019, and once finalized, it will replace the existing Data sharing code of practice (“existing Code”).
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