JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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What Does It Matter Who is Browsing? ISP Liability and the Right to Anonymity
Get PDFDisputes concatenating privacy, speech and security through the right to anonymity are particularly hard cases to adjudicate. The traditional paradigm, according to which anonymity plays a double role – protecting fundamental rights, as well as potentially threatening them – continues to drive policies that, in turn, emphasise the risks and downplay the opportunities of anonymity in the online world. The content/metadata distinction is a residue of such ambiguous views, persistent in the Court of Justice of the European Union’s (CJEU) approach towards the right to anonymity in ISP liability cases. The article initially explores the argumentative grounds behind the CJEU’s recent McFadden judgment (part 2.). Against the backdrop of the theory of balancing of interests, this paper critically examines the Court’s reductionist position. Our critique suggests a method of avoiding the disproportionately narrow scope of analysis that accompanies this position. For this purpose, we establish the right to anonymity at the periphery of both the freedom of expression and information, and the right to private life and data protection, while contesting the right to anonymity as a right sui generis. We proceed with three key points. By inspecting the nature of the right to anonymity, we unveil the interconnectedness between the right to freedom of expression and information and the right to private life and data protection (part 3.). Chilling effects represent an often understated evidence of this relationship. In addition, we see that affecting certain means of exercising a particular fundamental right, such as is its anonymous exercise, brings forward important extra-legal considerations, facilitating the discernment of chilling effects in any analysis of human rights. It is argued that regulating anonymity could pose a significant obstacle to the exercise of a fundamental right as a whole, and consequently impact upon the core of that right (part 4.). Harmonisation-driven attempts to develop human rights guarantees, framed in seemingly robust procedures established by the CJEU, at the level of data collection or retention as well as data disclosure by an ISP, have the potential to be derailed by nation-specific considerations. Taking such considerations seriously can reverse the imminent impact upon the core of the fundamental rights in question, which the narrow scope of traditional human rights analysis easily discounts. This requires diverting from the “targeting by dissuasion” argument as a mere technical exercise, and acknowledging the subtle subterranean relationship of the fundamental rights being considered (part 5.)
Copyright, Doctrine and Evidence-Based Reform
Get PDFCopyright lawmaking is conventionally embedded in a doctrinal tradition that gives much consideration to coherence and formal consistency with legal-theoretical foundations. This contrasts discernibly with the recent trend to base copyright policies and their elaboration into effective legal norms on empirical evidence. Recognizing that both approaches have their relative strengths and weaknesses, this paper explores how evidence-based policy can be reconciled with the traditional doctrinal approach to copyright lawmaking. It suggests that unproven doctrinal constellations that unnecessarily focus the legislative intention unequally on protecting copyright holders should be removed, but that lawmakers at the same time should also not stare blindly on economic evidence if legitimate claims based on fairness rationales are put forward, which also have to be weighed in as evidence
Genetically Modified Crops and Intellectual Property Law: Interpreting Indian Patents on Bt Cotton in View of the Socio-Political Background
Get PDFIn India, patents on Bt cotton have given rise to an unproductive controversy. This controversy has compromised the deliberative debate on the potential contribution of genetically modified crops to rural development. Notwithstanding the ongoing controversy, the article argues that the central demand of the campaign against patents on Bt cotton (the abolishment of patents on plants and plant parts) is actually not in contradiction with the practices of the Bt cotton industry (which mainly uses patents on the Bt technology). Furthermore, the Indian courts do have the legal possibility to interpret the Indian Patent Act in such a way that it prohibits the patenting of plants and plant parts. Such an interpretation could potentially help to appease the ongoing controversy and to foster a deliberative debate on genetically modified crops and rural development
The Intermediary Conundrum: Cyber-Regulators, Cyber-Police or Both?
Get PDFThe design of intermediary liability regimes has crucial impact on Internet users’ capability to fully enjoy their human rights. When intermediary are held responsible for their users’ activities, the foreseeable consequence is an increase on the types and granularity of restrictions that private entities will implement to escape liability. This article argues that, besides jeopardizing users’ rights, this situation can increase costs for both intermediaries and new entrants, while transforming intermediaries in cyber-regulators and cyber-police. As points of control of networks, platforms and a variety of cyberspaces, intermediaries have the possibility to regulate effectively the behavior of users through their terms of service and to enforce such private ordering in an autonomous fashion, through a number of technical measures. In this regard, intermediaries undertake a true role of private regulators, contractually regulating the content and applications that users are allowed to access and share as well as the ways in which their personal data can be collected and processed. Furthermore, intermediaries are regularly asked by public actors to take active steps in order to enforce national legislation, spanning from copyright infringement to privacy, from illegal hate speech to child pornography. The requests for banning specific forms of expression or limiting their circulation may be in the name of the personality rights, such as the reputation of individuals or companies, but also privacy, personal data protection, or, more frequently, Intellectual Property Rights (IPRs). The implementation of such requests may occur by imposing ex ante filters or blocking techniques, aimed at regulating the flow of information, or by imposing ex post removals of data, notably through notice-and-take-down mechanisms. Crucially, such mechanisms may be imbalanced, protecting specific interests while simultaneously discouraging user expression, participation and innovation, and raising costs for private economic initiatives, thus limiting the fundamental freedom of conducting a business. This work adopts a critical approach to analyze the role that many Internet intermediaries have undertaken as cyber-regulators and cyber-police. Subsequently, it discusses the current legal framework on intermediary liability, with particular regard to the case law of the Court of Justice of the European Union
Liability under EU Data Protection Law: From Directive 95/46 to the General Data Protection Regulation
Get PDFThis article analyses the liability exposure of organisations involved in the processing of personal data under European data protection law. It contends that the liability model of EU data protection law is in line with the Principles of European Tort Law (PETL), provided one takes into account the “strict” nature of controller liability. After analysing the liability regime of Directive 95/46, the article proceeds to highlight the main changes brought about by the General Data Protection Regulation. Throughout the article, special consideration is given to the nature of the liability exposure of controllers and processors, the burden of proof incumbent upon data subjects, as well as the defences available to both controllers and processors
Regulating Internet Hate: A Flying Pig?
Get PDFThis paper will assess the regulation of the internet in the ambit of hate speech expressed digitally through the internet. To do so, it will provide a definitional framework of hate speech, an overview of the internet’s role in the ambit of hate speech and consider the challenges in legally regulating online hate speech through a discussion of relevant case-law as well as the Additional Protocol to the Cybercrime Convention. The jurisprudential analysis will allow for a comparison of the stances adopted by the ECtHR and national courts of European countries on the one hand, and courts of the United States on the other, in the sphere under consideration. By looking at regional and national case-law and the initiative of the Council of Europe in the form of the Additional Protocol to the Cybercrime Convention, the paper seeks to provide an overview of the current state of affairs in the realm of regulating hate but also to demonstrate that such regulation, as occurring to date, is dysfunctional, predominantly due to the vast divergence of US-European approaches to the issues of free expression both on and off line. It is argued that due to the very nature of the internet as a borderless and global entity, this normative divergence cannot be overcome so long as traditional approaches to the issue of regulation continue to be taken. The paper’s analysis will emanate from the premise that there exists a need to strike an equitable balance between the freedom of expression on the one hand and the freedom from discrimination on the other
EU Copyright Liability for Internet Linking
Get PDFThis article analyzes linking on the internet from the perspective of the EU copyright concept communication to the public in the light of recent developments in late 2016 and early 2017, especially the Court of Justice of the European Union judgments GS Media, Filmspeler, and Ziggo. The article highlights the doctrinal approach on communication to the public and de facto harmonization of certain aspects of classic indirect liability. The article analyzes open issues relating to linking to illegal publications, specifically the uncertainty relating to the extent of liability for the contents of the linked page, the scope of pursuing profit when linking, and the linker’s duties of care. The article also discusses two aspects related to linking to legal publications; that is, the conceptualization of the “new public” requirement as a regulated implied license and the conditions of restricting access and circumventing restrictions
