JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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The Rectification of Opinions in Dutch Data Protection Law: A Brief Historical Inquiry
Full text linkOn the basis of EU case-law, guidelines and scholarship, it is unclear whether opinions can be rectified under Article 16 GDPR and, if yes, what rectifying opinions means in practice. Yet, such ambiguity cannot be explained on the basis of the text of Article 16 GDPR, which allows the rectification of any type of personal data. This article inquires into the historical origins of the facts versus opinions dichotomy for the purpose of the right to rectification in Dutch data protection legislation. It examines how and why this distinction emerged during the preparation of the first Dutch data protection law as well as how it influenced the interpretation and application of the right over time by Dutch courts and the Dutch DPA. This study can help explain what distinguishes opinions from so-called facts for the purposes of rectification, why such differentiation exists and how it can affect the interpretation and application of the right. The analysis leads to the conclusion that, at the Dutch level, the facts versus opinions dichotomy is a by-product of two fundamental uncertainties. The first one concerns the notion of accuracy and the standard of proof required to prove an inaccuracy. The second one relates, more generally, to the relation between data protection law on the one hand, and other (often national) legal regimes, such as administrative law or tort law, on the other, with which data protection law will often intersect
Lawfulness Requirements to the Storage of Customer Data in the Digital Product Passport
Full text linkWith the advent of the Digital Product Passport (DPP), introduced in the Ecodesign for Sustainable Products Regulation (ESPR), information concerning various aspects throughout a product’s value chain – from design to disposal – is to be made available in the future. This pursues the goal of promoting the establishment of a so-called circular economy in the European Union. The possibility of processing personal data within a DPP raises data protection issues, particularly concerning the lawfulness of storing customer data. Challenges arise especially in connection with the interpretation of the terms “explicit consent” and “customer” in Art. 10(1)(e) ESPR, as well as concerning the identification of the applicable sanctions in case of a violation of this article, in particular in view of the principle ne bis in idem. The paper at hand discusses these issues and proposes respective solutions
Liability of Online Platforms in Defamation Cases
Full text linkOnline platforms provide an unprecedented space for exercising freedom of expression while simultaneously facilitating the immediate and potentially global spread of defamatory content. At the same time, AI plays a dual role as a generator of risks to individuals’ fundamental rights and as an indispensable tool for detecting and preventing illegal content. This article explores the risks to the right to honor arising from the use of online platforms and their increasing reliance on AI, with a threefold aim: to establish the standard of conduct of online platforms in defamation cases, to assess the impact of AI developments on their liability regime, and to identify the remedies available to victims when platform
Portraits as Trademarks: A Doctrinal and Practical Analysis of EUIPO Case Law on Facial Image Signs
Full text linkThis article examines the increasingly relevant and doctrinally complex question of whether photorealistic human faces can serve as valid and protectable trademarks under European Union law. Drawing on updated empirical data, evolving EUIPO case law, and critical third-party interventions—including the amicus curiae brief submitted by INTA in the Smit case—the study interrogates the normative and institutional limits of trademark distinctiveness when applied to facial images. The research applies to doctrinal legal methodology supported by empirical observations and comparative references, with a focus on European legal sources and procedural developments. It evaluates the registrability, scope of protection, and practical enforceability of facial image trademarks in light of established principles of trademark law, including the requirement of distinctiveness, genuine use, and the limitations arising from personality rights and public interest. Particular emphasis is placed on the conceptual distinction between personal identity and commercial origin, the merger of service and sign in the context of modeling services, and the doctrinal thresholds for enhanced protection based on reputation. The findings indicate that while facial trademarks are gradually gaining acceptance, their registration raises unresolved theoretical and practical challenges that requires careful legal scrutiny and, potentially, legislative clarification to ensure coherence with the foundational objectives of trademark protection
Push Notifications under E-Privacy Law: A Review and Outlook on the Interplay between Data Protection Law, E-Privacy Law and other Legal Acts
Full text linkPush notifications are widely used to inform users directly about messages, news and offers. Although the opt-in mechanisms implemented by all providers of push notifications might suggest straightforward compliance with e-privacy law, this popular phenomenon is a good example to discuss the current and future challenges under European e-privacy and data protection law. The use of push notifications raises intriguing legal questions under the e-privacy directive, the General Data Protection Regulation (EU) 2016/679 (GDPR) and the law of unfair commercial practices. The focus here is on questions related to the interaction of these different legal acts, the requirements for legal bases as well as the relationship between a consent requirement and the push notification permissions granted through system permission prompts on the devices. A closer look is necessary for the requirements of the e-privacy Directive with regard to the storage of information on the device, unsolicited communication and the question of whether push notifications constitute electronic mail or other forms of communication. Against this background, this article explores the complex legal landscape surrounding push notifications, addresses these legal challenges, and provides standards for push notifications using different scenarios. Finally, the article concludes with a discussion on how the current legal framework handles such an important phenomenon and considers what to expect from a potential e-privacy Regulation in this regard. 
The European Union’s Pursuit of Digital Sovereignty Through Legislation
Full text linkIn recent years, calls for promoting Europe’s digital sovereignty have gained traction in Europe, including in EU policy circles. A digitally sovereign Europe, it is hoped, will be able to more effectively and autonomously control the use of digital technologies, services, and data in Europe. This Article aims to shed light on the concept of digital sovereignty and its relevance for the EU’s ongoing efforts to (re-)shape the rules of cyberspace through legislation. To this end, the Article attempts to develop a coherent understanding of digital sovereignty. Based on this understanding, the Article then analyzes how the EU has attempted to promote its digital sovereignty through legislation. It argues that the pursuit of digital sovereignty can be seen as an overarching goal and framework for a wide range of recent legal acts, including the Artificial Intelligence Act, the Digital Services Act, and the Digital Markets Act. The Article concludes by discussing the desirability of digital sovereignty as a legal and political goal and by considering some of the main criticisms of the EU’s pursuit of digital sovereignty
It will be what we want it to be: Sociotechnical and Contested Systemic Risk at the Core of the EU’s Regulation of Platforms’ AI Systems
Full text linkThe EU regulates AI systems of large digital platforms using a risk-based approach developed primarily through the Digital Services Act (DSA) and the AI Act (AIA). The existing literature highlights two main challenges to this regulatory strategy: the potentially unconstrained discretion and informational power of regulated tech companies, and the limited predictive value of risk regulation for less quantifiable forms of harm. This paper describes and systematises how EU law intends to address these challenges and ensure effective AI risk management processes. Through doctrinal analysis of the DSA, AIA, and their implementing laws and soft law, it lays out the integrated risk management framework these regulations establish for platforms’ AI systems. It argues that this integrated framework has three main normative commitments: (i) AI systemic risks should be framed sociotechnically, (ii) their management should be methodologically contextual, and (iii) and civil society should be actively involved in identifying and mitigating AI systemic risks. On this last commitment, however, the mechanisms for civil society participation remain especially unclear. This paper thus offers an overview of all formal and informal spaces of participation in this risk management framework, differentiating them by their institutional setup, rationales for civil society intervention, types of expertise sought, and actors involved. Overall, this paper advances the dialogue on the EU’s risk-based approach to platform and AI regulation, offering a possible baseline for critique and empirical inquiry into its implementation
Individual Rights in the AI Act - The Rights to Lodge a Complaint and to Explanation of the Decision-Making Process in Individual Cases
Full text linkWhile the Commission\u27s draft AI Act virtually ignored the legal positions of individuals, the adopted text contains a much stronger focus on this aspect and introduces two new individual rights, namely the right to lodge a complaint (Article 85 AI Act) and the right to explanation (Article 86(1) AI Act). Given the relevance of many AI systems to fundamental rights, this is to be welcomed; however, its concrete implementation raises new questions both within the internal system of the AI Act and in relation to the GDPR
Artificial Intelligence and the Law of Machine-Readability: A Review of Human-to-Machine Communication Protocols and their (In)Compatibility with Article 4(3) of the Copyright DSM Directive
Full text linkMany legal scholars critique the supposed ineffectiveness of European copyright regulation regarding commercial text and data mining. At the same time, tech-savvy entrepreneurs keep proposing new standards to effectuate them at a rate that has been described as “exponential”. The present paper reconciles these complementary perspectives. In the first (doctrinal) part, it develops a framework for article 4(3) of the Copyright DSM Directive by arguing that: (1) Web-scraping for AI training is a use case of TDM. (2) European TDM regulation seeks to protect fundamental rights and to uphold incentives of both AI developers and rightholders. (3) To ensure balanced protection, the legislator provided for a “reservation of rights” as an exception-exception similar to one found in the Berne Convention. (4) This reservation instrument gets criticized on account of being either unduly effective or largely ineffective – a tie that can only be broken by clarifying the doctrinal hurdles raised by the Directive. (5) The Directive establishes two standards that reservations need to fulfil simultaneously: They have to be explicit (specific for a given content and use) and automatable (employing a well-defined technical protocol). In the second half of the paper, it uses these standards to assess seven communication protocols commonly proposed to reserve TDM rights. It concludes that only some qualify as “machine-readable” in a legal sense at all, and that the proliferation of standards currently precludes any effective reservation of TDM rights. This may, however, come with a silver lining