Telecoms & Media 2019 Contributing editors Alexander Brown and Peter Broadhurst Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Telecoms & Media [email protected] Senior business development managers Adam Sargent 2019 [email protected] Dan White [email protected] Contributing editors Published by Law Business Research Ltd Alexander Brown and Peter Broadhurst 87 Lancaster Road Simmons & Simmons LLP London, W11 1QQ, UK Tel: +44 20 3780 4147 Fax: +44 20 7229 6910 The information provided in this publication is general and may not apply in a specific Lexology Getting The Deal Through is delighted to publish the twentieth edition of Telecoms & situation. Legal advice should always Media, which is available in print and online at www.lexology.com/gtdt. be sought before taking any legal action Lexology Getting The Deal Through provides international expert analysis in key areas of based on the information provided. This law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information is not intended to create, nor directors and officers. does receipt of it constitute, a lawyer– Throughout this edition, and following the unique Lexology Getting The Deal Through format, client relationship. The publishers and the same key questions are answered by leading practitioners in each of the jurisdictions featured. authors accept no responsibility for any Our coverage this year includes a new chapter on Korea. acts or omissions contained herein. The information provided was verified between Lexology Getting The Deal Through titles are published annually in print. Please ensure you March and May 2019. Be advised that this is are referring to the latest edition or to the online version at www.lexology.com/gtdt. a developing area. Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. © Law Business Research Ltd 2019 Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contributors No photocopying without a CLA licence. to this volume, who were chosen for their recognised expertise. We also extend special thanks to First published 2000 the contributing editors, Alexander Brown and Peter Broadhurst of Simmons & Simmons LLP, for Twentieth edition their continued assistance with this volume. ISBN 978-1-83862-118-6 Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 London May 2019 www.lexology.com/gtdt 1 Contents Introduction 5 Italy 105 Alexander Brown and Peter Broadhurst Edoardo Tedeschi and Margherita Gnech Simmons & Simmons LLP Simmons & Simmons LLP Net neutrality, privacy and VoIP: tension between US federal Japan 113 and state enforcers 6 Chie Kasahara John Nakahata, Kent Bressie, Adrienne Fowler and Stephanie Weiner Atsumi & Sakai Harris, Wiltshire & Grannis LLP Kenya 120 Brazil 9 Brian Tororei Maurício Vedovato and Daniela Maria Rosa Nascimento KT Law Associates Huck Otranto Camargo Korea 128 Chile 15 Kwang Hyun Ryoo, Ji Yeon Park and Juho Yoon Alfonso Silva and Eduardo Martin Bae, Kim & Lee LLC Carey Malta 135 China 27 Andrew J Zammit and Annabel Hili Jingyuan Shi GVZH Advocates Simmons & Simmons LLP Mexico 144 Cyprus 35 Julián J Garza C and Paulina Bracamontes B Kleopas Stylianou and Nikos Stavrou Nader, Hayaux & Goebel, SC Tornaritis Law Firm Nigeria 151 Czech Republic 41 Tamuno Atekebo, Otome Okolo and Chukwuyere E Izuogu Martin Lukáš and Vladimír Petráček Streamsowers & Köhn Weinhold Legal Portugal 160 European Union 48 Gonçalo Machado Borges, Nuno Peres Alves and Mara Rupia Lopes Christophe Fichet, Christopher Götz, Martin Gramsch, Anne Baudequin Morais Leitão, Galvão Teles, Soares da Silva & Associados and Felix Hänel Simmons & Simmons LLP Russia 169 Anastasia Dergacheva, Ksenia Andreeva, Anastasia Kiseleva, Greece 64 Kseniya Lopatkina and Vasilisa Strizh Dina Th Kouvelou and Nikos Th Nikolinakos Morgan, Lewis & Bockius LLP Nikolinakos & Partners Law Firm Serbia 177 India 72 Bogdan Ivanišević, Pablo Pérez Laya and Zorana Brujić Atul Dua and Anuradha BDK Advokati Advaita Legal Singapore 185 Indonesia 83 Chong Kin Lim and Shawn Ting Agus Ahadi Deradjat, Kevin Omar Sidharta and Mahiswara Timur Drew & Napier LLC Ali Budiardjo, Nugroho, Reksodiputro Switzerland 200 Ireland 94 Marcel Meinhardt, Astrid Waser and Damian Joho Helen Kelly and Simon Shinkwin Lenz & Staehelin Matheson 2 Telecoms & Media 2019 Contents Taiwan 207 Robert C Lee YangMing Partners Thailand 213 John P Formichella, Naytiwut Jamallsawat and Artima Brikshasri Blumenthal Richter & Sumet United Arab Emirates 221 Raza Rizvi Simmons & Simmons LLP United Kingdom 227 Alexander Brown and Peter Broadhurst Simmons & Simmons LLP United States 240 Kent Bressie, Julie A Veach, Michael Nilsson, Colleen Sechrest, Paul Caritj and Austin Bonner Harris, Wiltshire & Grannis LLP www.lexology.com/gtdt 3 Introduction Alexander Brown and Peter Broadhurst Simmons & Simmons LLP Continual changes to technology and the ways in which end users Second, a no-deal Brexit will mean that the Audiovisual Media consume information mean that the laws in relation to the telecoms and Services (AMS) Directive and its ‘country of origin’ principle will no media sectors are under constant review. The purpose of this publica- longer apply. This means UK audiovisual media service providers may tion is to give an overview of the framework in these areas across a wide be seen to be providing services from a ‘third country’ and, in turn, range of different jurisdictions. left open to new restrictions imposed by EU member states, subject to The answers to the questions posed in this publication address the provisions of the European Convention on Transfrontier Television not only the regulatory structure in each market, but also the practical (ECTT). In some countries an Ofcom licence may leave these service aspects of how those regulations impact on service providers and end providers unaffected by Brexit as a result of the ECTT, but the posi- users alike. The responses to each question highlight any key changes tion is not consistent across the EU. Furthermore, for video on demand over the past year, as well as any proposed plans for change and future services, UK providers will need to consider criteria under the AMS developments. In answering these questions, the responses seek to Directive to determine whether any EU member state will have juris- address both the legal and practical aspects of these industries. diction over its services. The importance of telecoms and media for end users generally Thirdly, although the World Trade Organisation’s General means that, for many countries, these areas are heavily regulated and Agreement on Trade in Services will enable UK operators to continue are subject to detailed competition law requirements. Attention is, there- to provide cross-border telecoms services and operate within the EU, fore, also given to how these restrictions on competition will impact on surcharge-free roaming is likely to be affected by a no-deal Brexit. This organisations operating in these sectors. Additionally, consideration is could mean EU mobile operators are no longer regulated in the costs given to how areas of law that are not specific to these sectors, such as that they can charge UK operators for providing roaming services. cybersecurity and data protection legislation, may impact on the tele- However, there have been indications that some UK mobile operators coms and media sectors. will continue with existing commercial arrangements with mobile oper- The responses to these questions avoid focusing on only one or ators in the EU (and beyond) to ensure existing roaming arrangements two segments of the industries, but instead look to give an overview of a are maintained, although it must be stressed that this is a commer- wide range of areas, from mobile communications to broadband connec- cial matter. tivity for telecoms and newspapers to online video content for media. Finally, Ofcom would no longer be subject to the oversight or direc- At the time of writing, it is still unclear whether the UK will be able tion of the EU Commission. Therefore, it would be free to determine to secure a deal for its exit from the EU, or whether the once fanciful ‘no which markets to review and what regulatory remedies to apply. It will deal’ scenario may soon be reality. This uncertainty brings to the fore be able to do so considering only the interests of the UK market and a number of consequences of ‘no deal’ in relation to the telecoms and consumers, and not the wider EU market. media sectors, a selection of which are outlined below. The above considerations are by no means an exhaustive list First, we have the question of whether the Commission will make of the possible consequences of Brexit for the telecoms and media an adequacy determination in respect of the UK’s data protection sectors, but we hope these provide a flavour of some of the issues to regime prior to the UK’s exit. If not, in accordance with the General consider at a very uncertain time for the UK. We hope that you find Data Protection Regulation, it will then be necessary to consider the this publication a useful starting point for understanding the structure legal basis for transfers of personal data from EU member states to UK and regulatory framework of the telecoms and media sectors across organisations wishing to receive this personal data, though contractual multiple jurisdictions. provisions are the most likely option. www.lexology.com/gtdt 5 Net neutrality, privacy and VoIP: tension between US federal and state enforcers John Nakahata, Kent Bressie, Adrienne Fowler and Stephanie Weiner Harris, Wiltshire & Grannis LLP Over the past five years, US telecommunications policy and regulation are frequent and have increasingly focused on internet-related services, have seen profound changes in direction with respect to the regula- where states have frequently stepped in to regulate where federal regu- tion of net neutrality, data privacy and security, and Voice over Internet lation has receded.