The Technology, Media and Telecommunications Review

The Technology, media and Telecommunications Review Editor John P Janka Law Business Research THE TECHNOLOGY, MEDIA AND TELECOMMUNICATIONS REVIEW Reproduced with permission from Law Business Research Ltd. This article was first published in The Technology, Media and Telecommunications Review, 1st Edition (published in October 2010 – editor John P Janka). For further information please email [email protected] The Technology, Media and Telecommunications Review Editor JOHN P JANKA LAW BUSINESS RESEARCH LTD PubliShER Gideon Roberton buSinESS dEvElOPMEnT MAnager Adam Sargent MARkETinG MAnagers hannah Thwaites nick barette EdiTORiAl ASSistanT nina nowak producTiOn MAnager Adam Myers producTiOn EdiTOR Joanne Morley EdiTOR-in-chiEf callum campbell MAnaginG diREcTOR Richard davey Published in the united kingdom by law business Research ltd, london 87 lancaster Road, london, W11 1QQ, uk © 2010 law business Research ltd © copyright in individual chapters vests with the contributors no photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation. legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of October 2010, be advised that this is a developing area. Enquiries concerning reproduction should be sent to law business Research, at the address above. Enquiries concerning editorial content should be directed to the Publisher – [email protected] iSbn 978-1-907606-09-0 Printed in Great britain by Encompass Print Solutions, derbyshire Tel: +44 870 897 3239 AcknowlEdGEMEnTS The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book: Firm names AdvOkatskO dRuzhESTvO AndREEv, STOyAnOv & TSEkOvA IN COOPERATION WITH SchOEnhERR BahAR & PartnERS BakER & MckEnziE.WOnG & lEOW clEARy GOTTliEb STEEn & hAMilTOn llP Edward nathAn SOnnEnbergS ElvinGER, hOSS & PRuSSEn GeorgiAdES & MylOnAS, AdvOcates & lEGAl cOnSultanTS JOnES Day Kromann REuMERT LathAM & WatkinS llP LathAM & WatkinS GAikOkuhO JOinT EnTERPRiSE linklaters AdvOkatbyRå AB M&M bOMchiL MinTER ElliSOn LawyERS PÉREz-llORcA SchOEnhERR & ASOciatii ScA SchOEnhERR ATTORnEyS at lAW SETh duA & ASSOciateS uRíA MEnÉndEz – ProençA dE cARvAlhO yOOn & yAnG llc cOnTEnTS Editor’s Preface �� vii John P Janka list of Abbreviations ��ix Chapter 1 ArgenTinA ��1 Francisco M Gutiérrez and Héctor M Huici Chapter 2 AuSTRAliA �� 14 Anthony Lloyd, Paul Kallenbach and Paul Schoff Chapter 3 AuSTRiA �� 29 Christian Schmelz and Andreas Orator Chapter 4 bulGARiA �� 37 Radoslav Chemshirov Chapter 5 cyPRuS �� 48 Yiannos G Georgiades and Rebecca E Howarth Seaberg Chapter 6 dEnMARk �� 64 Torben Waage, Louise Sofie Falch, Martin Dahl Pedersen and Daniel Herman Røjtburg Chapter 7 European uniOn �� 76 Maurits J F M Dolmans, Francesco Maria Salerno and Malik Dhanani Chapter 8 fRAncE �� 95 Christophe Clarenc Chapter 9 GERMAny �� 109 Zahra Rahvar Chapter 10 hOnG KonG �� 122 Simon Berry and Vi Vi Chow Contents Chapter 11 indiA ��136 Atul Dua, Rahul Goel and Anu Monga Chapter 12 indOnESiA �� 148 Dewie Pelitawati, Melanie Hadeli and Prihandana Suko P Chapter 13 Italy ��160 Stefano Macchi di Cellere and Giuseppe Mezzapesa Chapter 14 Japan ��172 Hiroki Kobayashi, Tim Johnson and Tomohiko Kamimura Chapter 15 Korea ��186 Wonil Kim and Kwang-Wook Lee Chapter 16 luxEMbOurg �� 199 Franz Fayot and Linda Funck Chapter 17 PortuGAl �� 214 Jacinto Moniz de Bettencourt and João de Sousa Assis Chapter 18 ROMAniA �� 225 Adriana Na˘stase and Ionut¸-Alin Sava Chapter 19 SinGAPORE �� 236 Ken Chia Chapter 20 SOuTh AfRicA �� 259 Safiyya Patel Chapter 21 Spain ��271 José Ramón de Hoces Chapter 22 SWEdEn ��281 Elisabet Lundgren and Emma Linnér Chapter 23 uniTEd kinGdOM �� 290 Omar Shah and Gail Crawford Chapter 24 uniTEd States �� 303 Karen Brinkmann and Jarrett S Taubman Appendix 1 AbOuT ThE AuThORS �� 316 Appendix 2 cOnTRibuTinG Law fiRMS’ cOntacT detailS �� 333 editor’s prefACE The development of industry always outpaces the development of the law. Nowhere is that more true than in the TMT sector, where the digital revolution has spawned new technologies and new services that no lawmaker could have envisioned as little as a decade ago. The Internet has, among other things, opened up new markets, broken down borders, created new educational opportunities, improved the provision of health care and reduced the barriers to entry for new service and content providers. Along the way, the legal constructs once put in place to govern traditional, wireline telecommunications have become outmoded. Commonplace technologies on which we have long relied may no longer predominate in the next decade. ‘Twisted pair’ (copper) is being bypassed in favour of fibre and wireless. Broadcast radio and television is becoming less relevant as consumers rely more and more on the Internet for the delivery of their entertainment, and demand that access wherever they are – at home or on the move. As a result, government policy is evolving to support the deployment of broadband infrastructure, and to facilitate mobile services. Many countries are also making significant investments to get high- speed broadband service deployed to all of their citizens. The booming demand for broadband services is straining the limited spectrum resources that are needed to enable wireless-based broadband services (both terrestrial and satellite). No incumbent user of spectrum is safe as existing spectrum bands are being refarmed; moreover, the digitisation of all forms of communication signals is leading to more efficient use of the spectrum, and facilitating new and creative approaches to sharing radio spectrum. But there is no ‘free lunch’, and national regulators are coming under increasing pressure to capture some of the value associated with the spectrum bands that they are opening for these new purposes. The broadband revolution frees consumers from their former reliance on a few newspapers, TV stations and radio stations for their news and information. But these ‘gatekeepers’ have not entirely been eliminated – they have moved further up the distribution chain as national governments and application service providers seek to constrain access to certain content, whether by blocking it entirely, or by prioritising one source over another. vii Editor’s Preface Personal information is being collected, stored and mined in a manner that our forefathers never could have envisaged. Even when we do not volunteer that information through a social networking site, virtually every Internet access and wireless device we use knows where we are, and tracks what we do. Such personal information is being used to target products and services to us (which may or may not be a good thing), but also can be used in a manner that virtually eliminates any expectation of privacy. While the marketing opportunities and social benefits can be terrific, the chances for abuse (particularly in the case of children) and the risk of security breaches are greater than ever. The goal of the first edition of The Technology, Media and Telecommunications Review is to provide

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