Blog

The Territorial Scope of EU-Privacy Law; Two Opinions from AG Szpunar

Posted by on Jun 18, 2019 in European Private Law, Stephan Mulders | Comments Off on The Territorial Scope of EU-Privacy Law; Two Opinions from AG Szpunar

By Stephan Mulders & Burak Haylamaz

On the 10th of January 2019, AG-Szpunar concluded in Google v. CNIL that a removal request based on the Google Spain v. Costeja judgement should not have a worldwide effect. However, on the 4th of June, the same AG concluded that an EU national court can, in fact, order an internet service provider to remove information worldwide in the case of Ewa Glawishnig v. Facebook Ireland.[1] In this post, we will analyze these seemingly contradictory opinions.

 

Both cases regard the right to privacy. The right to privacy is not an absolute but a relative right so that its scope must be balanced with competing rights, e.g. the right to freedom of expression and the right to access information of public. If there is a conflict between the right to privacy and the competing rights, a balancing test determines which right has primacy in a specific case.

Such balancing test is difficult -hence being queried- to accomplish if information is distributed over multiple countries as some countries tend to value privacy higher than the freedom of expression and vice versa. It is also questioned whether a national European court can effectively strike a balance on a worldwide level. These concerns, in turn, raise a legal question that whether European courts should extend their jurisdiction beyond European territories and order the removal of information in a global scale.

(more…)

RECIPES: REconciling sCience, Innovation and Precaution through the Engagement of Stakeholders

Posted by on Jun 12, 2019 in General Posts | Comments Off on RECIPES: REconciling sCience, Innovation and Precaution through the Engagement of Stakeholders

By Dr. Kristel de Smedt

 

The development of Genetically Modified Organisms (GMOs), nanotechnology and neonicotinoid insecticides presents opportunities for humans and the environment, but it can also carry risks to human, animal or plant health.

Decisions on their promotion or regulation are often to be taken in situations of uncertainty or lack of knowledge about these risks. But how do we take sound decisions in situations of scientific uncertainty? How do we decide on new or emerging technologies?

In such situations, the precautionary principle guides decision-makers faced with risks, scientific uncertainty and public concerns. As a general principle of EU law, it allows decision-makers to act despite scientific uncertainty.

In recent years, the principle has been criticised for hindering technologic innovation. Therefore, some stakeholders have developed an ‘innovation principle’, stressing the importance of taking into account also potential impacts on innovation.

Under the Horizon 2020’s subprogramme ‘Science with and for Society’ (SWAFS), the European Commission launched a call to take stock of the precautionary principle in R&I and to reconnect science with society.

The RECIPES project (REconciling sCience, Innovation and Precaution through the Engagement of Stakeholders) of the Consortium led by Maastricht University takes up this challenge and aims to develop new tools and guidelines to ensure the precautionary principle is applied while still encouraging innovation.

(more…)

Courts and Internet Governance (Conference, 5 June 2019, Brussels)

Posted by on May 27, 2019 in Catalina Goanta | Comments Off on Courts and Internet Governance (Conference, 5 June 2019, Brussels)

Organizers:
Mariolina Eliantonio (Maastricht University, Department of Public Law)
Catalina Goanta (Maastricht University, Law&Tech Lab)
Isabelle Wildhaber (University of St. Gallen, Institute for Work and Employment FAA-HSG)

When issues first arise in connection with how disruptive innovations need to be qualified according to current legal regimes, courts are the ones expected to interpret new developments in the light of established laws. Yet courts – just as lawmakers – are often criticized for their perceived inability to understand technology and keep up with its pace. As innovation develops and transforms Internet architecture, users and governance, marking ashift from the web 1.0 of the early 90’s to the platform-dominated web 2.0, it gives rise to more complex legal questions. On the one hand, with the advent of peer-to-peer economy around platforms such as Youtube, Instagram, AirbnB or TaskRabbit, legal certainty is under siege, as shown by various referrals by national courts in the European Union to the Court of Justice: When is user consent gathered by online sufficiently ‘specific’ and ‘informed’ (Case C- 61/19)? Is a natural person who posts eight ads on a website a trader who is bound by consumer protection (Case C‐105/17)? On the other hand, developments in distributed technologies such as blockchain have in more recent times added decentralization to the already-existing legal uncertainty. While the blockchain space has seen skyrocketing investments, losses arising in relation to fraudulent Initial Coin Offerings (ICOs), hardware manufacturing defects or security holes in smart contracts are reported by news outlets, but rarely make it on the desks of judges.

This conference builds on an initial exploration of the topic of decentralization held at the Faculty of Law at Oxford University in March 2019. The event takes the overarching theme of Internet governance, as the vast majority of the data-related issues as illustrated above has been shaped by the increased interconnectivity, use and architecture behind the Internet. The first panel tackle Internet governance from the perspective of the legal certainty necessary for stable markets and societies. The second and third panel zoom into court activity with respect to issues related big data collected, stored or linked online, as well as the circumstances underlying the lack of more litigation relating to blockchain-related wrongs.

Keynote speech: Primavera de Filippi (Harvard University & CNRS)

Full programme and registration here.

MEPLI and IDS team wins Commission tender

Posted by on Apr 19, 2019 in Caroline Cauffman | Comments Off on MEPLI and IDS team wins Commission tender

A multidisciplinary team of researchers from the UM Faculty of Law and the Institute of Data Science (Caroline Cauffman, Gijs van Dijck, Michel Dumontier, Catalina Goanta, Monika Leszczyńska, Kody Moodley and Pedro Hdez Serrano) recently won the tender JUST/2018/CONS/PR/CO01/0123 – Exploratory Study: Exploring IT/AI tools for monitoring online markets for consumer policy purposes. The aim of the project is to identify and make an inventory of IT and AI tools that are or can be made useful for online market surveillance for consumer policy development purposes and for the enforcement of consumer protection legislation. In addition, it aims to develop options and recommendations for action to integrate the use of such tools in online market monitoring for policy development at EU level for EU and national consumer policy enforcement. Do reach out to us researchers if you are building/using such tools!

 

Congres ‘De toekomst van de rechtswetenschap’ (24 mei 2019 te Utrecht)

Posted by on Apr 12, 2019 in Catalina Goanta | Comments Off on Congres ‘De toekomst van de rechtswetenschap’ (24 mei 2019 te Utrecht)

Teneinde gezamenlijke reflectie in gang te zetten, organiseren wij op 24 mei een congres waarbij onderzoekers uit alle geledingen van de rechtswetenschap met elkaar van gedachten kunnen wisselen.

De Werkgroep Rechtswetenschap is een platform van rechtswetenschappers die in verschillende wetenschappelijke functies werkzaam zijn aan Nederlandse universiteiten. Aanleiding voor het vormen van de Werkgroep is de opvatting dat de toegenomen nadruk op het verwerven van externe onderzoeksfinanciering, onder andere door teruglopende rijksfinanciering, ertoe noopt de taak en inhoud van de rechtswetenschap te (her)formuleren.

Twee concrete doelen
Wij richten ons daarbij in eerste instantie op twee concrete doelen: ten eerste het reflecteren op de vragen wat de rechtswetenschap ‘eigen’ maakt en aan welke criteria goed onderzoek in die context zou moeten voldoen; en ten tweede de praktische vraag hoe wij als juristen zelf de regie kunnen houden over financiering van onderzoek. Meer informatie is te vinden op werkgroeprechtswetenschap.nl. 

 

Planned obsolescence and consumer protection

Posted by on Apr 3, 2019 in Consumer Law, General Posts | Comments Off on Planned obsolescence and consumer protection

By Dr. Marta Santos Silva

 

Nowadays, large corporations are taking advantage of the rapid technological and scientific development in product manufacturing to increase their sales and profits.

One of the business models being explored is the so-called “planned obsolescence”. Planned obsolescence can be defined as a production strategy through which companies plan and control a product’s lifespan, configuring products in such a way that they will stop working as well as they did before, or even entirely, right after the warranty period expires.

While “planned obsolescence” may imply a certain intent on the part of the manufacturer, more neutral and broader designations, such as “premature”, “negligent” or even “avoidable obsolescence” are sometimes used. These encompass the cases described above, but also all cases where the dysfunctionality of the product after a certain period was unintended by the producer and is a result of more general patterns of unsustainable production and consumption.

(more…)

Meeting on Draft Model Rules on Online Intermediary Platforms

Posted by on Mar 19, 2019 in General Posts | Comments Off on Meeting on Draft Model Rules on Online Intermediary Platforms

On Thursday 14 and Friday 15 March the Maastricht University Campus Brussels hosted the meeting of the reporters and members of the project “Draft Model Rules on Online Intermediary Platforms” of the European Law Institute. The project aims to develop model rules on online intermediary platforms that set out a balance between conflicting policy options and demonstrate what potential regulation at EU or national level could look like. The meeting was organized by Caroline Cauffman. About 16 academics from several European Member States and European Commission representatives engaged in very fruitful plenary working sessions. ​Reputational systems and redress were the main topics of the discussion on the first day, while the second day was devoted to the discussion of the coherence of the final draft.

Should robots be given legal personhood?

Posted by on Mar 11, 2019 in General Posts | Comments Off on Should robots be given legal personhood?

By Dr. Caroline Cauffman

 

On 7 February 2019, the SSH Synergy conference 2019 took place in Bussum. The aim of the SSH Synergy conferences is to bring together academics from all disciplines of Social Sciences and Humanities, policy makers and professionals from civil society organisations involved in SSH research in order to discuss themes of current interest. In 2019, the focus was on the theme of Digitalisation. The conference included a number of key note speeches, parallel sessions, a science battle alongside the possibility to network while visiting an info market with organisations from science, society and industry.

NWO offered SSH researchers the possibility to propose topics for the parallel sessions. We were fortunate enough to have our proposal selected and to be given the opportunity to organise two debate sessions in the afternoon on the question of whether robots (which we use as shorthand for artificially intelligent entities) should be given legal personhood.

(more…)

Remedying Wrongs on a Decentralized Internet: An Exploratory Dialogue

Posted by on Mar 4, 2019 in Catalina Goanta | Comments Off on Remedying Wrongs on a Decentralized Internet: An Exploratory Dialogue

 

Workshop convened by the Empirical Legal Studies Discussion Group (Oxford University) in collaboration with the Institute for Work and Employment (FAA-HSG, University of St. Gallen) and the Maastricht Law and Tech Lab (Maastricht University), based on an initial theme exploration by Catalina Goanta (Maastricht University), Andres Guadamuz (University of Sussex), Felix Pflücke (Oxford University) and Isabelle Wildhaber (University of St. Gallen).

15 March 2019, Faculty of Law, Oxford University

Rewind to the early 1990’s: an infant World Wide Web recently created by Tim Berners-Lee was starting to redefine the way people were connected globally. First came communication services (e-mail) and a shift from physical to digital marketplaces (e-commerce). Then came the rise of Internet platforms, in what is now deemed to be Web 2.0 – prosumers generate content on platforms such as Youtube, Facebook, Instagram (social media), or offer their individual services on Uber, AirBnB or Taskrabbit (peer-to-peer/gig platforms). These developments have been both lauded and criticized. On the one hand, the Internet as we know it dissolved geographic distances, created new industries, facilitated the distribution of goods of services and empowered individual employment. On the other hand, it gave rise to new questions about what is real and what is fake: what to do if someone posts fake reviews; who to hold accountable for fake news; how to prevent a new wave of labour exploitation, etc. The critics of Web 2.0 claim it is a spoiled version of early Internet promises: freedom from surveillance, online safety (even through anonymity) – in a nutshell, more control and power for the user. Painful public scandals like the sort of Equifax or Cambridge Analytica make it easy to argue that with the rise of data as a commodity, Internet users have indeed lost a lot of this control to data brokers, surveillance agencies and hackers. The answer to the problems of Web 2.0 is thought to be the third era of the Internet, namely the Decentralized Internet. Blockchain platforms like Steem are used to make decentralized equivalents of a lot of apps we have grown accustomed to: DTube instead of Youtube, Graphite Docs instead of Google Docs, or Storj instead of iCloud. The main benefit of decentralization – beyond privacy – is said to be the freedom from monopolies held by centralized platforms that now determine, through their own intransparent algorithms, who gets to see what information on the web. In addition, decentralization proposes a new, trustless constellation of behavioural incentives (e.g. Smart Media Tokens, etc.) and communication infrastructure devoid of intermediaries. But while there might be some strong market opportunities to embrace in a new Internet era, the law does not move into new ages with the same speed. Decentralization has already been occurring, in the form of individual accessibility: citizen reporters are disrupting press, entertainment and advertising services, and gig drivers are replacing taxis. Emerging practical issues are under-regulated, and challenge legal systems to determine if their classical paradigms are still fitting: is posting fake negative reviews a crime? Are Youtubers professionals or individuals? Do Internet platforms have a duty of care? Moreover, not just public institutions, but platforms themselves face a problem of scale, and struggle with enforcing legal standards. These are problems that have yet to be solved, which a new Internet version might very well inherit. This small-scale event aims to kickstart an interdisciplinary debate on decentralization interpreted in two ways: (i) the decentralization of accessibility (as described above); and (ii) the decentralization of Internet services as proposed by cryptonetworks, which use consensus mechanisms and cryptocurrencies for maintenance and incentives. These interpretations take decentralization to be a central theme for the development of the Internet. The workshop will focus on different contributions that identify potential legal wrongs arising out of decentralization, with the goal of exploring old and new remedies (both substantive and procedural) that could correct them, while emphasizing the role of technology in delivering these potential remedies.

The impact of free digital offers on individual behavior and its implications for consumer and data protection laws

Posted by on Feb 18, 2019 in General Posts | Comments Off on The impact of free digital offers on individual behavior and its implications for consumer and data protection laws

Two days ago, I received great news! I was awarded a Marie Skłodowska-Curie Fellowship to conduct research on how offers for free digital goods and services influence people’s decision about their personal data and consumer rights. This three-year project will be supervised by Jan Smits. It will include collaboration with researchers from the UM School of Business and Economics and a research stay at ETH Zurich with the Law, Economics, and Business Group led by Alexander Stremitzer.

The idea for this research started with a simple observation that there is an abundance of digital goods and services offered for free. We can communicate with our friends through social networks, store our files in clouds, navigate the city, manage our finances or even find a life partner using mobile applications or online services without paying a single penny.

When looking closer at these offers, it can be, however, noticed that free does not yet mean that we give nothing in exchange. We do provide our private information and attention that might be profitably used by suppliers of free digital content. Since these transactions affect consumers and their personal data, they fall within the scope of two fields of the EU law – data protection and consumer law. The overall objectives of these two areas of law are to protect the privacy of consumers and to balance their position against more powerful transaction partners, i.e., businesses. The question which interests me most is whether these objectives are indeed achieved with the current design of the rules, given people’s heuristics and biases in decision making about free products. Behavioral research has demonstrated that consumers tend to overestimate the benefits and underestimate nonmonetary costs of free digital content in the form of exposure to advertisements. Yet, it is still unknown how free offers influence consumer decisions that are relevant from a legal perspective, i.e., decisions that involve consumer rights and privacy. During my MSCA Fellowship, I will conduct online experiments to address this knowledge gap.

Specifically, I will aim to answer the following research questions:

  1. How does offering digital content at a zero price but in exchange for personal data influence consumers’ decisions about:
    • use of digital content,
    • sharing of personal data,
    • use of contractual and data protection rights, e.g., request to repair the defective content or to delete personal data.
  2. Will these decisions change if consumers are provided with information that:
    • consumer personal data are supplied as counter-performance for free digital content?
    • consumer personal data are valuable?

With the proposed experimental studies, I will provide further insights on consumer behavior by identifying how consumers make decisions regarding free digital content supplied in exchange for personal information. These transactions have been recognized as in need for a policy intervention and have been subject to recent legal initiatives in the EU such as the General Data Protection Regulation or the Digital Content Directive. The stakes are non-trivial. Although consumers do not pay money for free digital products, they do suffer detriment when a product fails to function properly (e.g., costs of time spent on repairment) or due to abuse of personal data they shared in exchange. Crucially, free offers might affect one of the most vulnerable groups of consumers that is low-income consumers who cannot afford paying for digital products. Thus, the overarching goal of this research is to learn whether there is room for improving welfare of consumers of free digital content and what further measures could be implemented to achieve such an improvement.

Since this is my very first post on the MEPLI blog, I would like to take this opportunity to briefly introduce myself to its readers. I am an Assistant Professor of Empirical Legal Research at the UM Faculty of Law. Before coming to Maastricht, I was a post-doctoral fellow and an LLM student at the NYU School of Law. I got into experimental research during my doctoral studies at the Max Planck Institute for Research on Collective Goods in Bonn. There I worked together with economists and psychologists investigating the impact of law on human behavior. For instance, I ran a series of experiments aimed to understand the influence of gender- and performance-based selection procedures on group cooperation (more details here). Based on my own and other empirical research I developed legal arguments contributing to the discussion on introducing gender quotas in corporate boards. I also investigated experimentally how payoff-irrelevant terms (i.e., a fixed-term vs. open-end contract duration) can impact contractual behavior (more details here). When at NYU I expanded my empirical toolkit and  started analyzing the content of contracts governing transactions for free and paid digital content. This helped me generate further research questions that I am going to address as a Marie Skłodowska-Curie Fellow. I will keep you posted about the results of this research project, so stay tuned!