JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Platform regulation, content moderation, and AI-based filtering tools: Some reflections from the European Union
Full text linkOnline platforms have voluntarily relied on screening tools for content moderation purposes for quite some time now. They do so to deal with the problems of scale and the speed content is shared online. Currently, the efforts of online platforms to fight illegal and harmful content are continuously focusing on innovative AI-based solutions for better performance of their content moderation systems. At the same time in the EU, new rules on content moderation are entering the arena. These rules may require a more active role of online intermediaries to detect and remove illegal content in their sites. This begs the question whether we are moving towards a filtering obligation in disguise on online intermediaries. If that is the case, are AI-based filtering systems fit to avoid blocking lawful content? What safeguards should be taken at regulatory level to ensure the protection of fundamental rights of online users
Privacy-compliant design of Cookie Banners according to the GDPR
Full text linkCookie banners appear on almost every website or application we access, but as often as they appear, as rarely do they comply with mandatory (data protection) laws. This is mainly due to the abundance of - partly diverging - regulations. on national and international level. This article attempts to evaluate relevant legislative acts as well as European Guidelines, Recommendations and Decisions to determine what a privacy-compliant consent banner should contain
From data subjects to data suspects: challenging e-proctoring systems as a university practice
Full text linkE-proctoring is a set of software and tools to monitor students’ behaviour during online examinations. Many universities have implemented this type of invigilation in response to the lockdowns during the pandemic to guarantee the validity and the integrity of exams. However, the intrusiveness of such technology into the students’ personal environment along with major accuracy problems (e.g., in authenticating black students) has attracted the scrutiny of various European data protection authorities and, more recently, equality bodies.
In this paper, we critically approach the European normative framework available in countering the risks and situations of harms generated by e-proctoring through the lenses of data protection and anti-discrimination law. This work, in particular, is one of the first to systematise and analyse the corpus of online proctoring-related decisions that have emerged in the EU over the past three years.
After an overview of the technical aspects of such technology and an outline of the legal issues debated in the literature, the paper will reconstruct and discuss the convergences and divergences in how courts and independent authorities have assessed the lawfulness of online invigilation tools. In our analysis, we observe that such instruments were evaluated differently depending on the concrete features implemented. However, with some notable exceptions, the General Data Protection Regulation and the anti-discrimination framework have largely proven helpful to combat the most intrusive forms of e-proctoring deployment or to mitigate their risks. Nevertheless, to ensure a safer and fairer educational environment, we conclude that a few crucial issues—including the effectiveness of the collective enforcement of rights, discriminatory effects for people not covered by a protected ground, and the governance of edTech within the university—should be further taken into account
The exceptional mismatch of copyright teaching exceptions in the post-pandemic university – insights from Germany, Bulgaria, and Ireland
Full text linkApplication of artificial intelligence (AI) in the assessment of the credibility of statements in the cross-border taking of evidence in civil and commercial matters
Full text linkRegulation (EU) 2020/1783 on ‘cooperation between the courts of the Member States
in the taking of evidence in civil and commercial matters’ introduces taking evidence by videoconference
or other distance communications technology as the
“gold standard” in the process of direct cross-border taking of evidence by examining a person who is
present in another Member State. This represents a
step forward compared to the previous Regulation
1206/2001, as the provision for direct evidence taking through videoconferencing was rarely applied in
practice. The direct taking of evidence through videoconference contributes significantly to the realisation of the principle of orality and immediacy in
civil proceedings, as opposed to indirect methods of
cross-border taking of collection. On the other hand, a question arises whether the principle of immediacy
is weakened by using videoconferencing, given that
there is a “digital barrier” between a witness and the
court. When assessing the credibility of the statements made by parties, witnesses, and experts, psychological criteria in addition to logical criteria plays
an important role in shaping the court’s opinion on
the truth of the assertion regarding the existence of
certain facts. As a solution for consideration, there
is a possibility of using an artificial intelligence sytem to detect deception during the direct taking of
evidence by examining parties, witnesses, or experts.
However, the admissibility of the above solution
should be considered as a multi-faceted issue, particularly regarding aspects of the right to a fair trial,
personal data protection rules, and the proposed provisions of the Artificial Intelligence Act
Online-Dispute Resolution - Paving the way towards harmonising the Birksian archipelago of obligations?
Full text linkIt is only natural that the rise of e-commerce is coupled with an increasing number
of disputes; eBay alone has seen a record 60 million cases opened under its online dispute-resolution (‘ODR’) scheme. While this can be regarded as
the first step towards the creation of an online rule-
of-law, such ODR mechanisms are often shrouded in
uncertainty.
In that regard, this paper explores ODR mechanisms
in both established, and in, what we describe as ‘informal’ marketplaces, such as commerce on Reddit and Discord. This paper first asks whether these
ODR mechanisms give rise to its own jurisprudence
possibly inconsistent with “offline” rules of law, and
whether such a bifurcation of “online” and “offline” rules of law is normatively desired. Next, it then queries the limitations of various policies and regulations
which attempt to strengthen ODR mechanisms. It
contends that various policies are disconnected from
their practical implementation and constraints which
ODR platforms face.
Ultimately, it concludes that a more nuanced approach is required if such frameworks were to be harmonised across Courts through the proposed taxonomy. Current international recommendations, while
a good starting point, should be condensed to certain principles which may be adopted across platforms, while preserving site-autonomy across different types of platforms
Creations of artificial intelligence: In search of the legal protection regime
Full text linkPictures, texts, music, sound recordings autonomously generated by artificial intelligence systems have already become part of the global market for goods and services. Unlike works and objects of related rights, AI-generated objects fall into the public domain from the moment of their appearance because there is no legal regime for their protection. Whether this status should be maintained in the future is one of the most difficult questions. In 2020, the European Parliament concluded that it is necessary to introduce legal protection for such objects but it has not yet been determined how this should be done. There are various scientific arguments in favour of such protection, which, however, raise reasonable doubts due to the fact that they are not confirmed by practice. Many proposals have been made regarding the legal regime for the protection of objects generated by AI without human participation, which are also quite controversial. This article examines the rationale for the legal protection of autonomous computer creations and possible concepts of their legal protection. Objecting to the protection of computer creations by copyright and related rights, this article justifies that, if the need for their legal protection is proven, it requires the development of a special legal regime
Actions and reactions in commodifying cultural heritage hosted in museums
Full text linkMuseums are inclusivity-aimed institutions with a mission of education to knowledge. This mission can be appropriately implemented via the traditional initiatives of preservation and of exhibition, and the less traditional initiatives of sharing information related to cultural heritage via the internet or the metaverse, or by elaborating material to be used by visitors in an interactive fashion. It is undeniable that all these initiatives are costly. So, many museums did not resist the temptation of introducing self-fund mechanisms via the use of different legal tools, such as contractual provisions, national rules on cultural heritage and copyright principles. By exploiting these legal measures museums establish a control-based approach, that make their focus shift to market dynamics. In the last decade, an open-access approach in this field was initiated by the civil society via bottom-up initiatives, on the top of which the legislator added some regulatory measures more recently. The latter expressly aims at consolidating access and education to knowledge. However, a closer look to the entire set of relevant regulatory measures in particular reveals that underpinning economic interests are the main priority of such an approach related to making images of cultural heritage collected in museums available for re-use purposes, at a limited cost. These economic interests are only indirectly those of museums, while they are directly those of businesses. Thus, libre open-access practices and policies that encourage wide re-uses, should they be bottom-up or derive from a regulatory framework, would certainly bring two advantages. The first would be to let museums focusing on educational purposes in a fashion that is in line with the digital technology facilities; the second one would be to encourage market operators of any size to conduct business
Role of White Paper in smart contract formation within ICO (IEO, IDO)
Full text linkOne of the primary issues for blockchain’s widespread adoption in society is the issue of
applying traditional contract law to smart contracts.
This is because certain elements of contract law are
not fully adapted to the formation of agreements
with the blockchain. White Paper, which is widely
used in other procedures for the placement of digital assets (ICO, IEO, IDO) can serve as an appropriate
instrument to explain blockchain code in valid legal
manner. This article investigates the interaction between law
and software by means of White Paper. According to
the author, approaching a White Paper and program
code as a unified concept could solve many practical
problems, including the creation of a clear model of
ICO smart contract formation, determination of the
time of ICO smart contract conclusion and ensuring
consistency between the White Paper and contract
law requirements for the proper structure of contracts