Commercial Law update: looking forward to 2025

Following our 2024 round up just before Christmas, the Brodies' commercial team have pulled together a selection of significant developments that we believe will be in focus in 2025. As we said at the start of last year, this is not a comprehensive or definitive list and there is always the possibility that events may not unfold as predicted. In other words, we have no crystal ball so, to stay up to date, we recommend signing up for our legal updates or contact us directly with the areas in which you would like be updated.

1. Generative Artificial Intelligence ("AI"). In December, the Information Commissioner's Office ("ICO") published the outcome of its five-part consultation series on generative AI and data protection. The consultation covered key areas addressing regulatory uncertainties about how specific aspects of the UK data protection regime apply to the use and development of generative AI. The consultation has led the ICO to update its position on the legitimate interest lawful basis for web scraping to train generative AI models by placing the onus on developers to demonstrate that web scraping is actually necessary for the development of its generative AI. In other words, developers need to have thought whether there were other sources for the data that was needed. The ICO is planning on engaging developers and researchers on the extent to which they can rely less heavily on web scraping to train generative AI models moving forward. In doing so, there will be an emphasis on transparency when it comes to identifying source materials for AI models. For businesses, the most important takeaway will be that the ICO will be updating its guidance on AI to include generative AI. We will be taking a closer look at the 41-page response document in an upcoming blog post.

2. Digital Markets, Competition and Consumers Act ("DMCCA") Subscription Contracts Regime. Of the changes being brought in by the DMCCA, one of the most significant will the way in which businesses can operate online subscription services. The DMCCA will introduce a new set of rules as to how these types of contracts will be governed, with the aim of making things clearer and fairer for consumers. At present, the DMCCA itself contains the overall principles that will apply but the detail will be contained in new rules, requiring companies to provide clear information upfront about costs, contract length, and how to cancel. In November 2024, the government launched a consultation on a draft of these rules. The consultation is part of the government's effort to refine the regulatory framework, ensuring it meets the intended goal of preventing "subscription traps" while remaining proportionate and practical. Some of the proposed rules that the government are asking for feedback on are

• cooling-off cancellation rights: returns and refunds, cancellation remedies for breach of duties, repayment of refunds,
• contractual terms for existing contracts,
• arrangements for contract exits, and
• information notices and pre-contract information requirements.

The consultation closes in February, so we can expect the final rules to be settled later in the year. For stakeholders in the industry, please find the link to the Consultation here, which explains how to respond.

3. Data (Use and Access) Bill. As previewed in our 2024 Christmas roundup, after the scrapping of the Conservative Government's Data Protection and Digital Information Bill (the "DPDI Bill"), the new Labour Government has introduced its own version: the Data (Use and Access) Bill. The draft legislation proposes a wide assortment of different measures, including

• targeted changes to the UK data protection framework including the UK GDPR, Data Protection Act 2018 and the Privacy and Electronic Communications Regulations,
• "smart data" schemes which allow for secure sharing of customer and business data and enhanced access to public sector data for private businesses,
• digital identity verification services,
• a revamped structure for the Information Commissioners Office, and
• a new legal framework and asset register to improve the efficiency and safety of apparatus (such as broadband cables).

Broadly, the Government's aim is to modernise the current UK data protection regime whilst giving more flexibility through a pragmatic approach to regulation. As of writing, the Bill is at report stage at the House of Lords, after which it will pass through the House of Commons.

4. Getty Images v Stability AI. As flagged in our blog post Intellectual Property - 2024 in Review and What to Expect in 2025, one of the most critical cases on the topic of copyright and AI will be heard in 2025. Getty Images v Stability AI is significant as it addresses key legal questions about copyright law in the context of AI including:

• how copyrighted materials (such as images) can be used to train AI models,
• testing the limits of the "fair use" principle that allows certain uses of copyrighted materials,
• whether content creators will have methods of recourse for protecting unauthorised uses of their work, and
• shaping future policymakers as guidance for potential incoming AI regulation.

It is likely to be a landmark case with wide-reaching implications for AI, copyright law and creative industries.

5. General Product Safety Regulation. As well as new legislation on the horizon, some of the key legal developments in 2025 will come through implementation measures for legislation enacted in 2024, including the EU's new General Product Safety Regulation (EU) 2023/988 ("GPSR"). It took effect on 13 December 2024 and is a comprehensive overhaul of the previous EU General Product Safety Directive. The new Regulation aims to enhance consumer protection and address challenges posed by technological advancements and the growth of e-commerce. Importantly, compliance with the GPSR is a substantial exercise and will require significant investment and strategic adjustments for many companies, especially for businesses dealing in AI-driven products or those heavily reliant on online sales. Whilst the GPSR does not apply in the UK, businesses placing products on the EU market must review and adjust their practices to meet these new standards to maintain market access and avoid penalties. For a more detailed look into the GPSR, please see our blog post Preparing for the EU’s new General Product Safety Regulation in 2024 which takes a closer look at the new regulations, plus how businesses can stay compliant.

6. Green Claims Directive. With growing concerns about 'green-washing' claims by businesses, the European Commission has put forward a proposal for a new Green Claims Directive ("the Directive"), to govern claims made by businesses to consumers regarding the 'green' nature of their products. The proposed legislation would require companies to substantiate the green claims that they make to consumers. The Directive would also require businesses to ensure their green claims have been verified independently before being published, to make supporting evidence public and only make comparative claims to other businesses by using comparable data. The Directive was introduced by the European Commission in March 2023 and has been steadily progressing through the European Parliament, and, following elections last summer, the new European Parliament announced in November that it is continuing to work on the proposed legislation. Again, it is not clear at this stage the extent to which the Directive would impact businesses operating in the UK, and (of course) any Directive needs to be incorporated into the law of member states by their own national legislation which complicates things further, but UK businesses marketing to consumers in the EU should be aware of these potential changes, especially if environmental concerns are at the centre of their commercial strategy.

If you would like to discuss anything raised in this blog in more detail, please get in touch with a member of the corporate and commercial team or your usual Brodies contact.