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US eBulletin: Winter 2020

25 February 2020

Welcome to the winter edition of our US eBulletin, where we take a look at IP and Brexit, the right to be forgotten, nudity guidelines for the UK film and TV industry, internet harms, important tax changes for loan-out companies, loot boxes and cryptoassets.

IP and Brexit: update

Since the UK formally left the EU on Friday 31 January 2020, the country is now in a transition period, scheduled to end on 31 December 2020, during which the current legal position will be maintained.

Following the transition period, it is seeming increasingly likely that Brexit will affect intellectual property, and the delivery of goods and services between the UK and the EU.

We have produced a note describing the likely impact of Brexit on registered trade marks, domain names, designs, copyright and related rights, patents and exhaustion of rights.

You can read our note in full here.

Right to be forgotten – territorial scope

The Court of Justice of the European Union (CJEU) has confirmed in an appeal brought by Google that the right to be forgotten is limited to Europe when dealing with global platforms. The judgment is available here.

To recap, individuals can apply to have results from search engines removed where these results infringe their legal rights. Circumstances where search engines may be required to remove search results include where the search results concern spent convictions and private and family matters.

In 2016, the French data protection regulator fined Google €100,000 for failing to remove unlawful results across all of its global platforms. Google appealed, arguing that it should only have to delete results from searches carried out within Europe, and from its European platforms (such as and

You can read the article in full here.

Nudity guidelines set for UK film and TV industry

Directors UK, the industry body that represents film and television directors, has released guidance on directing nude and simulated sex scenes.

The guidance – the first of its kind in the UK – aims to address the power imbalance between performers and directors when filming sensitive scenes by setting out practical guidelines for directors to follow. The guidelines apply to all productions, regardless of the size of their budget.

Though the document is, strictly speaking, aimed at directors, the industry predicts it will impact how directors work with producers, writers, casting directors, agents, wardrobe and make-up departments, intimacy co-ordinators (if any) and of course performers, so it would be advisable for all those working in the film and television industries to familiarise themselves with its content.

You can read the article in full here.

Cracking down on internet harms

The past year has seen increasing recognition, from both social media giants and government, of the risks posed by an unregulated internet.

Celebrities like Little Mix singer Jesy Nelson have spoken out about the harmful effects internet trolls can have on the mental health of individuals.

John Kelly, partner in the firm’s Reputation Protection and Privacy team, said: “Recent high profile celebrity incidents have highlighted the need once again for social media platforms to put in place effective policies to tackle trolling. We would like to see effective policies and regulation introduced to protect social media users from such horrific attacks.”

The Government has begun to focus on the risks faced, in particular by children and vulnerable adults, on the internet.

Following the release of the Online Harms White Paper in April 2019, the Queen’s Speech has outlined a commitment to regulating online harms.

The Department of Culture Media and Sport (DCMS) is still reviewing consultation on the plans, which would impose a statutory duty of care on online platforms and give regulatory powers to Ofcom.

One of our new consultants, Lorna Woods, has been involved with drafting some of the proposals mentioned.

You can read Lorna’s latest blog on what lies ahead for the regulation of online platforms for 2020 here.

Lorna is Professor of Internet Law at the University of Essex and her expertise includes the regulation of broadcasting, on-demand services, the press and advertising as well as the Internet and data privacy.

IR35 important changes: What clients and contractors with personal service companies need to know

New Off-Payroll Working Rules (commonly known as IR35) (the New Rules) for private companies are being introduced from 6 April 2020 which will affect fee payments made in respect of contractors who provide their services through intermediaries, such as personal service companies (PSCs) on or from 6 April 2020.

The New Rules pass the responsibility for determining whether or not IR35 applies, from the PSC to the client organisation.

From April 6 2020 medium and large organisations in all sectors of the economy will become responsible for assessing the employment status of individuals who work for them via a PSC/intermediary company.

The key question for such client organisation will be ‘Would that individual worker be our employee if the contract between the individual worker and the intermediary/PSC did not exist?’

If the conclusion is that the worker would be regarded as an employee for tax purposes, the fee payer (i.e. the client organisation, or where there is another party in the labour supply chain, the party who pays the contractor’s PSC) will need to deduct income tax and employee NICs from any fee paid to the intermediary/PSC and account for it to HMRC under PAYE and also pay the corresponding employer NICs (and any relevant apprenticeship levy).

You can read the article in full here.

UK Government’s advisory committee publishes its findings on loot boxes and other areas of concern

An advisory committee to the UK Government has published findings which make for an eye-opening read for the games industry, and which could, if implemented, have a major impact on studios and publishers and require them to make changes to their business models and games.

In particular, in a drastic departure from what the UK Gambling Commission indicated last year, the Committee has suggested that certain loot boxes should constitute gambling in the UK.

If this approach is adopted by the Government, it could bring the UK more closely in line with other European countries which have adopted a tough stance on loot boxes.

The UK Government has the bit between its teeth in relation to the impact of video games on consumers, particularly children.

Last year, it appointed the Committee to conduct an inquiry into ‘immersive and addictive technologies,’ which focused in particular on the video games sector.

The Committee carried out a wide-ranging evidence gathering exercise, including face-to-face interviews of several major studios, publishers and other experts and stakeholders in this space.

You can read the article in full here.

FCA publishes final guidance on cryptoassets

Last summer the UK Financial Conduct Authority (FCA) published a final guidance on which activities involving cryptoassets fall within its current financial services regulatory framework.

This is the first time that the UK regulator has provided clear advice as to how cryptoassets fit into its regulatory regime.

The guidance confirms that any firm in the UK issuing, buying, selling or advising on regulated cryptoassets without prior authorisation from the FCA may be committing a criminal offence.

You can read the article in full here.

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