Brussels IP & Tech Update - May 2022
In this edition of our IP and Tech Update, we bring you news on the Belgian implementation of the EU Omnibus Directive, the publication of our Influencer Marketing Guide and the new remuneration rights stemming from the EU DSM Directive for authors and performers in the EU. We highlight some interesting new GDPR guidelines by the EDPB on calculation of fines, dark patterns in social media and facial recognition technology and provide an overview of the adjustments to the Belgian R&D wage withholding tax exemption. We also share the recording of our recent webinar on EU Regulatory Data Protection.
Belgium implements the Omnibus Directive: what does this mean for your business?
On 5 May 2022, the Belgian legislator ratified the implementation of the EU Omnibus Directive into its national law. The Belgian Act was set to enter into force on 28 May 2022, but has not yet been officially published. We expect the publication in the Belgian Official Journal to take place soon and it cannot be excluded that the Act then will apply retroactively from 28 May 2022. This will leave companies little time to align with a number of significant and challenging changes to consumer protection rules, including specific information requirements for online marketplaces, an extension of consumer rights to “free” digital content and services, additions to the list of unfair practices and changes to the rules on announcements of price reductions. Compliance with the new rules will be subject to GDPR-like level sanctions. Read our blogpost here.
Webinar: EU Regulatory Data Protection: A legal and policy appraisal of an emerging legislative framework
This webinar from our Brussels Data Protection and Government Affairs teams provided insight into some of the main regulatory data protection initiatives at EU level, such as the Data Act, Data Governance Act, Digital Services Act, Digital Markets Act, AI Regulation and the revived ePrivacy Regulation. During the webinar, our lawyers discussed how all these pieces of regulation fit together and talked about the political trends regarding future legislation and the state of ongoing political negotiations. We also had the pleasure of welcoming Mr. Kai Zenner, a policy advisor at the European Parliament contributing to the development of these initiatives. You can access the recording here.
Tax and R&D: Adjustments to the R&D wage withholding tax exemption and announcements of new tax audits
Recently the Belgian legislator has introduced adjustments to the exemption of wage withholding tax for R&D. As this measure is widely applied by employers with development activities in IP and IT, we’ve highlighted in a blogpost, the first in a series prepared in collaboration with our tax team, the most relevant adjustments and elements that often lead to disputes during a tax audit. You can read the blogpost here.
Towards new remuneration rights for authors and performers in the EU
This blogpost sets out these new remuneration and related rights and the consequences they could – and probably will – entail for contractual counterparts to whom authors or performers have transferred or licensed their copyrights. Read more on the new rights and obligations that contractual counterparts of authors or performers should be aware of here.
Long-awaited public database for case-law of the Belgian courts on its way
A publicly accessible, electronic database of judgments and decisions of the Belgian judiciary has been in the pipeline for more than two decades. Now that the first practical steps are effectively being taken towards the technical development of the database, the legal challenges should also be addressed. Heidi Waem was invited to speak on the GDPR aspects of the database at a dedicated conference of the Brussels Bar on 18 May 2022.
Webinar: Advertising law in 2022
Alexis Fierens and Elisabeth Daem presented an overview of recent developments in advertising legislation during a webinar for the Institute for Company Lawyers (IBJ / IJE). Topics included the new Belgian rules on influencer marketing, the EU Omnibus Directive and recent case law on misleading and comparative advertisement. If you’re interested in a similar webinar, please feel free to contact us.
New EDPB Guidelines on calculation of administrative fines, dark patterns in social media and the use of facial recognition technology in law enforcement
The EDPB has adopted additional guidelines that aim to harmonise the methodology used by data protection authorities when calculating GDPR fines. To further align the amounts imposed under the GDPR, the guidelines set out a five-step plan that should be followed by DPAs in individual cases. Read more about the other new guidelines here.
Moreover, the EDPB guidelines on “dark patterns” scrutinise practices on social media platforms that lead users into making unintended, unwilling and potentially harmful decisions regarding the processing of their personal data, including providing too many options, hiding information, using misleading information and using visual nudges. Notwithstanding the focus on social media platforms, relevant considerations can be applied to the design of other software and services. The EDPB also suggests a number of best practices. Read the guidelines here.
In view of the increasing use by law enforcement agencies of facial recognition technology, the EDPB clarifies the current legal framework in these new guidelines and reiterates its call for a ban on the use of certain biometric applications. Although the guidelines focus on the provisions of the Law Enforcement Directive, interesting parallels could also be drawn in relation to the GDPR.
Interplay between AI and the EU proposal for a new Machinery Regulation
In parallel with the proposal for a Regulation on Artificial Intelligence, the European Commission also presented a proposal for the new Machinery Regulation 2021 that will replace the Machinery Directive currently in force. In this blogpost, the main intersection points are discussed between machinery safety legislation and the evolution of digital technologies, including AI, IoT, cybersecurity and the human-machine relationship. Read the blogpost here.
Valuable resources
2nd edition of DLA Piper’s Influencer Marketing Guide published
We’re pleased to announce the publication of the second edition of our Influencer Marketing Guide, produced by our international advertising team. Alexis Fierens and Emma Stockman contributed to the Belgian chapter of the guide which describes the local legal framework, applicable transparency requirements and the potential consequences of cooperating with influencers in Belgium. The full guide can be downloaded here.
