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.

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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.

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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!

 

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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. 

 

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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.

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The Regulation of Social Media Influencers, 11 January, Maastricht

BOOK WORKSHOP

11 January 2019
Maastricht University, Faculty of Law 

As people turn away from classical advertising channels such as television, print or radio, social media platforms such as Instagram, Youtube, and more recently Tik Tok, are establishing themselves as marketing outlets in the search of consumer engagement. Powered by the generation of online content by their users, consumers who produce content – or in other words prosumers, these platforms now feature hundreds if not thousands of popular individuals who amass impressive amounts of followers. Active in any possible industries that appeal to their followers, ranging from gaming to pets, lifestyle, beauty or health and fitness, social media influencers continuously create content for their fans to keep them updated on different products and services, in the form of reviews.


On the one hand, empowering users to start their own channels or accounts and be able to gather revenue as an alternative to a classical job sounds promising: there are no market entry requirements, it provides the much-coveted millennial work flexibility, and can be a great alternative if job prospects are dire. On the other hand, influencer marketing raises fundamental legal and moral questions. As a lot of the content posted by influencers on social media is sponsored by the companies behind the products or services they review, without any notification: how should the audience draw the line between honest opinions and paid endorsement? What is more, the business models used by influencers are obscure at best. Most influencers start small, very likely as an individual and not as a freelancer or a business, so it is very difficult to tell who owns a specific account and what their obligations are to their audiences: is it a company that must comply with advertising laws and consumer protection, or is it peers, not bound by the same high standard? What happens with content which entails health risks, such as the promotion of cosmetic surgery or medical products? In addition, given that impressionable children between 7 and 15 are constantly present on social media, should they benefit from any additional protections?

This workshop brings together interdisciplinary approaches to some of the less visible issues posed by advertising on social media, and is supported by the Independent Social Research Foundation, the Maastricht European Private Law Institute and the University of Groningen. Each speaker in the event is currently authoring a chapter in the book The Regulation of Social Media Influencers (Elgar, forthcoming 2019), edited by Sofia Ranchordás and Catalina Goanta. The event will also feature a keynote speech by Madeleine de Cock Buning, Professor (Utrecht University /EUI), Chairman of the Dutch Media Authority (CvdM) and Chair of the European Commission’s High-Level Expert Group (HLEG) on fake news and disinformation.

The full programme and registration are available here. The workshop is free of charge, but places are limited. Registrations will be open until 5 January. For any additional inquiries, you can send an email to catalina.goanta@maastrichtuniversity.nl.

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