Pedro Lomba: "We are seeing a new field of law: mobility law"
Pedro Lomba, Head of Technology at PLMJ, talks us through key TMT regulation in Portugal, how regulators can keep up with innovation, and the rise of mobility law.
Leaders League: What have been the key pieces of regulation in the TMT sector recently, and what do you foresee for the future?
Pedro Lomba: We’re actually facing several key regulations impacting the TMT sector. I’d mention at the outset the implementation of the AVMS [Audio-Visual Media Services] Directive and its relevance to traditional AVMS (i.e. television), and most importantly to emergent on-demand AVMS. The Digital Content Directive is also soon to be transposed, as well as the new Copyright Directive. The P2B [Platform- to-Business] Regulation has been an important piece of legislation, although I am not totally sure about its effectiveness. Of course, there is a whole package of upcoming regulations for the digital economy: the DSA [Digital Services Act], DMA [Digital Markets Act], the ePrivacy Regulation. These will be transformative, but I believe it is probably too soon to predict the outcome of the legislative processes. Clearly, we are now witnessing the emergence of digital platforms law, based on this complex movement towards more regulation and governance of technology. The European Electronic Communications Code is still at the draft law stage here (the lack of timely transposition by most member states raises doubts as to the implementation in Portugal). The use of a 5G mobile network – one of the “mottos” of the Code – and how operators will implement it is, for now, an unknown; Portugal may even be the last EU country to have a commercial 5G network offer.
However, not everything is about formal laws and regulations. The various regulators or agencies operating in the TMT sector (including data, telecoms, media and cybersecurity) have been producing important guidelines. Recent Opinions 16/2021 and 17/2021 published by the EDPB [European Data Protection Board], approving two cross-border cloud codes of conduct in compliance with the GDPR [General Data Protection Regulation], is a regulatory milestone in the TMT sector. Additionally, we have just seen the European Commission updating the standard contractual clauses for international transfers of personal data in the post-Schrems II framework.
In sum, there’s a lot in place and a lot more to come.
Self-regulation in TMT is better than new regulations that could destabilize the sector
You have served as a Deputy Secretary of State. What were the most important lessons you learned when working so close to government?
I was in office between 2013 and 2015, which were difficult years for the country. I had responsibilities in media policy and always tried to work closely with the main stakeholders in the field. A key priority was establishing a continuous dialogue between the legacy media and the new media, fostering a digital agenda in the Portuguese media landscape.
I learned two important lessons. One is that you can incentivize forms of self-regulation in the TMT industry, instead of producing new regulations that could potentially destabilize it. A second lesson was the need to closely work with all the regulators in the field. This requires a particular approach focused on finding a space for communication and learning with regulators, in order to anticipate regulatory problems and thus avoid litigation costs. This holds true particularly in regulated markets increasingly exposed to digital transformation.
One of the problems with legally circumscribing innovation is the pace at which innovation occurs. What can regulators and authorities do more of to keep up with technological developments?
All of us working in the TMT sector should start with a good sense of reality. That is, we need to be as innovative and flexible as our clients. Specifically, this applies to regulators and authorities that may be tempted to think that technological developments must be shaped according to specific policy preferences, which may ultimately lead to bad solutions. On the other hand, there is an initial attitude that the authorities should have, which is to be neither optimistic nor pessimistic about tech transformation. I think that a middle ground here is very important. For example, I see in Europe a skepticism about technology that is highly worrying and that can inspire regulators to make mistakes.
In recent years I have been teaching a course called Law of Apps where I bridge the gap between theory and practice and I always start with that first point. We can look at the app economy as a phenomenon of centralization and the strengthening of the power of the well-known app stores; or we can look at it as a decentralized and very dynamic reality that completely transformed our economic experience and relations.
How has the media landscape changed recently, and what has PLMJ done to keep up?
OTT [over-the-top] services have had an enormous impact in the media and telecoms industries, and in the advertising industry as well. Also, under the new Portuguese Law 74/2020 (implementing the AVMS Directive) VOD [video on demand] platforms are now covered by specific obligations in the media sector. We have been fortunate to work with both: a big media group that recently launched its own OTT service, and VOD platforms now subject to the new regulations.
More generally, what does PLMJ offer TMT clients that other law firms don’t?
We offer our service based on four principles. First, proximity to our clients. This may sound like a buzzword but it’s not. We value the business partnerships. We take a strategic business approach and advise accordingly.
Secondly, we have a multidisciplinary approach. We are not the typical TMT team primarily focused on data protection issues or IP or one particular industry. We are experienced and knowledgeable in all fields required for a solid TMT practice, which is something not commonly found in Portugal. This is due to the diversity of our clients as well as our team. We have strong regulatory experience in all areas, extensive contractual and commercial expertise, constitutional law and fundamental rights backgrounds, and solid experience with Code and tech norms. Thirdly, we have extensive knowledge of the platform/collaborative economy model, which has fundamentally pervaded all TMT sectors.
Finally, we are well integrated with our IP practice, which is also not a common practice found in Portugal.
What does PLMJ’s mobility practice involve?
Over the years, we have developed a strong practice in urban mobility law: not only the traditional automotive sector but also transportation platforms and delivery platforms as well. Our focus has been on the digitalization of the automotive industry, new entrants to mobility markets (both public service obligations and liberalized markets), regulatory barriers, private and public partnerships, new ventures, platforms, smart cities, intelligent mobility systems and infrastructures, and the use of new technologies in transportation, including shared mobility and goods. I believe this is a new field of law: the law of mobility.
Regulators may be tempted to think that technological developments must be shaped according to specific policy preferences. This could lead to bad solutions
What will be the key challenges for TMT lawyers in the coming years?
The challenge for all of us is the post-pandemic years. The pandemic affected our economies and at the same time has accelerated digital transformation. This has already changed the way we work, live and shop, as well as our forms of entertainment. There are various TMT sectors that are now on the rise (marketplaces, OTT services, AI, cybersecurity, healthtech, fintech and the blockchain). Companies will be encouraged to invest, develop and acquire multiple technological assets. They will need to develop new cyber infrastructure for protection and security.
I believe a key challenge for TMT lawyers is to closely work with M&A teams. On the other hand, there will be a substantial number of new regulations in the near future. Some will be applied, some will be contested. TMT lawyers will also be more and more exposed to cloud computing legal matters, as companies (and governments) move their data into international data centers. Finally, there will be an increase of fundamental rights litigation. We are already seeing this in some fields, such as privacy or consumer law, and I believe there will be others.
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