New Law on the re-use of Public Sector Information (“PSI”)

Posted on July 3rd, 2015 by



This week saw the publication of the new Re-Use of Public Sector Information Regulations which will come into force on 18 July 2015. There are some significant new changes in the 2015 Regulations which public sector bodies, certain cultural sector bodies and those interested in re-using PSI need to be aware of.

The new Regulations implement an EU Directive (Council Directive 2013/37/EU) on the re-use of PSI.

A legislative framework covering the re-use of public sector information is not in itself new, there being a previous 2003 EU Directive which had been implemented in the UK by the Re-Use of Public Sector Information Regulations 2005.

However, the legislative framework has now been updated to take into account the increased amount of data available and the technological changes that have taken place since the 2003 Directive.

It is recognised that core benefits like stimulating economic activity and increasing the efficiency and transparency of public functions are at the heart of permitting re-use of PSI. Consequently, the new law increases the rights of re-users by making re-use mandatory for most pubic authorities, setting a default charging mechanism of marginal cost recovery in most circumstances and bringing public sector museums, libraries (including university libraries) and archives within the regime for the first time.

So what’s new ?

The information below summarises the key changes that are introduced by the 2015 Regulations.

2005 Regulations 2015 Regulations
Regulations apply to public sector bodies, including local government

 

Application has been extended to include cultural sector: libraries (including university libraries), museums and archives

Only accessible information is re-usable

 

Information produced, held or disseminated within a public sector body’s public task must be re-usable (unless restricted or excluded)

Make information available

 

Make information available through open licences and machine-readable and electronic formats whenever possible

No obligation to allow re-use

 

Obligation to allow re-use of information unless restricted or excluded, or from a cultural sector body

Standard licences encouraged

 

Open, non-restrictive licences encouraged

Permits charging for re-use

 

Marginal cost pricing is the default, in most cases this will be nil for online or digital information.

Certain public sector bodies such as information providers/traders, and libraries, museums and archives may charge higher than marginal cost

Prohibits exclusive licences

 

Some cultural and other public sector bodies can use exclusive licensing

Complaints process established

 

Complaint may be escalated to the ICO who can make binding decisions on most issues, with appeal to the First-Tier Tribunal

 

So what does this mean in practice ?

Public Sector bodies

Accessible information which is produced, held or disseminated by the public sector body must be made available for re-use (unless it is otherwise restricted or excluded).

A marginal cost pricing model should be used. For many public sector bodies this will mean they are unable to raise a charge for making information available for re-use. Such bodies will be required to justify any charges in excess for marginal cost pricing.

Public Sector bodies should clearly identify what is there public task as this determines what information falls within the scope of the 2015 Regulations.

Public Sector bodies are under no obligation to release information for re-use if intellectual property rights within the relevant documents are owned by others.

Libraries, Museums & Archives

Many of the UK’s cultural sector bodies are in practice already complying with the 2015 Regulations as the approach they have adopted in relation to the production, holding or dissemination of their information is consistent with the approach required under the 2015 Regulations. For those that are not they now need to make their information re-useable.

Libraries, museums and archives will be able to charge re-users to cover the costs of collection, production, reproduction, dissemination, preservation and rights clearance of their material, and include an amount to cover a reasonable return on their investment.

Making information available under open licensing (through the Open Government Licence) is encouraged but some exclusive licensing will be permitted especially where the library, museum or archive is working with the partner on a digital access project, as this in itself increases the potential for the re-use of their information. Libraries, museums and archives have the right to decline requests for re-use although such decisions may be challenged.

Re-users of PSI

For re-users, the 2015 Regulations should make it easier to re-use public sector information. In general, any information that is accessible either because it has been published or because it has been released under UK information access legislation such as the Freedom of Information Act, should be available for re-users under an open licence.

For most re-use, charges should be at marginal cost which in many cases will equate to a nil charge.

There is no substitute for getting in to the detail of the new Regulations but do let me know if you require any assistance in assessing the impact of the new Regulations on your organisation.

Paul Barton

Partner, Public Sector Information specialist

Paul.Barton@fieldfisher.com

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Competition and Markets Authority considering crackdown on fake online reviews and endorsements

Posted on June 30th, 2015 by



 

Back in 2013 the New York Attorney General set up a fake yoghurt shop in Brooklyn and paid reputation management firms to enhance the image of the business. The Sham yogurt shop rapidly gained accolades from reviews in far flung countries such as Bangladesh and the Philippines – despite never having existed. The problem however has never been one of American culture (apologies) and the UK needs to set its own house in order.

At the beginning of 2015, the Competition and Markets Authority (‘CMA’) called for information on online reviews and endorsements, particularly whether or not these online reviews matched up to consumers’ expectations. As a result of this, on 19 June 2015 the CMA published a report detailing its findings and announced that it is launching an investigation into a number of businesses in connection with the potential non-disclosure of paid endorsements and other concerns associated with unlawful practices. But what does this mean for businesses and consumers?  

 

CMA report – purpose and findings

The CMA call for information sought to fully understand not just how businesses collect and use consumer data, but also how data affects consumers, businesses, competition and the wider economy. Alex Chisholm (CMA Chief Executive) commented: “One of our priorities as a new authority is to take a closer look at developments and practices in growing areas such as this. We want to understand better the ways in which consumer data is used, as well as the consequences from this“.

Fast forward six months and the CMA has published its report which includes the following key findings:

  1. consumers that use online reviews find them valuable and these reviews appear to be an important source of information for consumers’ buying decisions;
  2. there have been developments in the reviews sector which have the potential to improve outcomes for customers including the development of systems which detect and verify fake reviews; identify reviews that are likely to be more helpful and enable users to flag suspicious-looking reviews themselves; and
  3. consumers that use blogs and vlogs before making a purchase find them valuable but these types of endorsements are often read by consumers for entertainment purposes.

 

What is the focus of the CMA’s investigation? 

The online review market is used by approximately more than 50% of UK adults[1] and is primarily the focus of the CMA’s investigation. In carrying out its research into this area, the CMA welcomed the pro-competitive effect of online reviews but found instances of potentially misleading practices in online reviews and endorsements including:

  1. fake positive/negative reviews posted on review sites;
  2. review sites ‘cherry-picking’ positive reviews or suppressing negative reviews;
  3. negative reviews not being posted; and
  4. businesses paying for endorsements in blogs and other online articles without this being made clear to consumers.

 

In order to combat these types of practices, the CMA will use its consumer enforcement powers to investigate a number of companies in connection with the potential non-disclosure of paid endorsements.  

At this stage, the CMA has not publicly named the businesses that are directly involved in its investigation. However, businesses that engage in this type of activity should ensure they are compliant with consumer protection law to avoid any potential action from the CMA.

 

So what should businesses do?

The CMA has published two advice notes for businesses on what they are required to do to ensure they comply with consumer protection law when publishing online reviews and endorsements. These notes relate to ‘Online reviews: giving consumers the full picture‘ and ‘Online endorsements: being open and honest with your audience‘.  

The key takeaways from these notes are:

  1. be clear with consumers about the sources of information and how they are verified; and
  2. if an endorsement/review is paid for, businesses must ensure this is made clear to consumers else they risk breaking the law.

 

If you would like to discuss how to ensure you are compliant with consumer protection law, how to ensure your competitors are not seeking an unfair advantage or the legal and commercial issues associated with the CMA’s investigation, please contact me.

[1] CMA Statistic 2015

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