Two-minute Recap of Platform Law Developments - November 2023

Bulut Girgin, Orçun Horozoğlu, Umut Aydoğan, Ceren Ceyhan, Hatice Nur Arslan, Efe Utku Çal, Sıla Ustaoğlu, Dilara Utku, Doğa Günaydın

TikTok challenges fine over GDPR violations

Chinese video-hosting service TikTok filed a lawsuit before the Court of Justice of the European Union (“CJEU”) on 10 October 2023 against the European Data Protection Board (“EDPB”). This legal action challenges the binding decision of the EDPB concerning the EUR 345 million fine imposed by the Irish Data Protection Authority in September 2023. The dispute revolves around how TikTok treats its young users and its alleged violation of the fairness principle set forth in the General Data Protection Regulation (“GDPR”). The EDPB concluded that TikTok was deficient in providing transparent information to its child users and engaged in practises known as dark patterns that are designed into the interface and are intended to trick users into taking a particular action.

Meta plans to charge USD 14 a month for an ad-free experience on Instagram or Facebook

Meta officially announced on 30 October 2023 that starting in November, new alternative subscription options for its Facebook and Instagram services will be available in Europe. These options include a paid, ad-free version of its flagship services, Facebook and Instagram, targeted at users who prefer not to consent to the use of their data. In contrast, an ad-supported free version of these services will continue to be available for users who do not consent to data usage. Meta’s new approach now positions the fundamental right to privacy as a premium service, costing USD 14 per month.

Meta and TikTok have appealed their “gatekeeper” designation under the EU’s DMA

In September, the European Union designated 22 "gatekeeper" services managed by six major tech corporations: Microsoft, Apple, Google (Alphabet), Amazon, Meta, and ByteDance's TikTok. Viewed as a counterpart to the Digital Services Act (DSA), which imposes greater responsibilities on tech companies for the content shared on their platforms, the Digital Markets Act (DMA) is designed to address the imbalance in competition between significant tech players and smaller rivals. TikTok disputes its market position and turnover thresholds, citing intense competition while, on the other hand, Meta challenges the “core” status of its Messenger and Marketplace services, asserting Marketplace is consumer-to-consumer, and Messenger is part of Facebook. The companies aim for clarification on the core function analysis given that similar services offered by other gatekeepers are designated differently.

The Data Act is coming into force

The European Parliament has recently introduced the European Data Act (“Data Act”), which regulates the accessibility of data, the conditions for accessing it, and how data is shared by private and public organizations. On 27 November 2023, the European Council officially approved the European Data Act. After the Council's formal endorsement, the European Data Act is scheduled to be published in the EU's official journal in the next few weeks and will become effective on the twentieth day following its publication. The act is set to be applicable starting 20 months from its effective date. Notably, Article 3, Section 1, pertaining to the requirements for simplified access to data for new products, will specifically apply to connected products and their associated services introduced to the market after 32 months from the regulation's effective date. The Data Act, as previously agreed by Members of the European Parliament and member states, is in keeping with the European Parliament's endorsement of proposals for the improved access and utilization of data.

ICO warned UK websites: “make the changes now, or face the consequences”

The UK's data protection authority has issued directives to the country's most frequently visited websites, warning of possible penalties if they fail to align their cookie usage procedures with the law within thirty days. The authority has notified some of the UK's top websites about possible sanctions unless they comply with data protection regulations. The November statement highlighted the necessity of providing a “Reject All” cookie option for advertising and similar purposes, which should be as easily accessible as the “Accept All” option.

Luminance's “Autopilot” AI develops contract negotiations

The Autopilot, an AI technology developed by Luminance, a British company, is capable of examining contracts and conducting contract negotiations autonomously without any human involvement. Although this software operates independently, users have the ability to monitor each stage of the process and keep a record of every modification made by the artificial intelligence system.

Fortnite dance battle

The legal dispute over the use of copyrighted dance moves in Fortnite, developed by Epic Games, has resurfaced. Choreographer Kyle Hanagami will pursue his case against Fortnite and Epic Games following the U.S. Court of Appeals for the Ninth Circuit's dismissal of the case on 1 November. Hanagami alleges that Fortnite infringed his copyright by incorporating his choreography into the game. Contrary to the lower court's opinion that Fortnite merely replicated poses, the appeals court highlighted that choreography involves a full arrangement of movements and patterns. The case is now returning to the lower court for a potential trial.