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    2-6 July 2018

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News

Publications

Political micro-targeting: a Manchurian candidate or just a dark horse?

Bodó, B.

Helberger, N.

de Vreese, C.H.

Political micro-targeting (PMT) has become a popular topic both in academia and in the public discussions after the surprise results of the 2016 US presidential election, the UK vote on leaving the European Union, and a number of general elections in Europe in 2017. Yet, we still know little about whether PMT is a tool with such destructive potential that it requires close societal control, or if it’s “just” a new phenomenon with currently unknown capacities, but which can ultimately be incorporated into our political processes. In this article we identify the points where we think we need to further develop our analytical capacities around PMT. We argue that we need to decouple research from the US context, and through more non-US and comparative research we need to develop a better understanding of the macro, meso, and micro level factors that affect the adoption and success of PMTs across different countries. One of the most under-researched macro-level factors is law. We argue that PMT research must develop a better understanding of law, especially in Europe, where the regulatory frameworks around platforms, personal data, political and commercial speech do shape the use and effectiveness of PMT. We point out that the incorporation of such new factors calls for the sophistication of research designs, which currently rely too much on qualitative methods, and use too little of the data that exists on PMT. And finally, we call for distancing PMT research from the hype surrounding the new PMT capabilities, and the moral panics that quickly develop around its uses.

19-01-2018

Two crates of beer and 40 pizzas: the adoption of innovative political behavioural targeting techniques

Dobber, T.

Helberger, N.

Trilling, D.

de Vreese, C.H.

Political campaigns increasingly use data to (micro)target voters with tailored messages. In doing so, campaigns raise concerns about privacy and the quality of the public discourse. Extending existing research to a European context, we propose and test a model for understanding how different contextual factors hinder or facilitate data-driven capabilities of campaigns. We applied the model during the 2017 national election campaign in the Netherlands. The results show how data-driven targeting techniques are not only useful in a first-past-the-post system, but also in a proportional representation system, which at first sight seems to be less suitable for such techniques.

19-01-2018

Governing online platforms: From contested to cooperative responsibility

Helberger, N.

Pierson, J.

Poell, T.

Online platforms, from Facebook to Twitter, and from Coursera to Uber, have become deeply involved in a wide range of public activities, including journalism, civic engagement, education, and transport. As such, they have started to play a vital role in the realization of important public values and policy objectives associated with these activities. Based on insights from theories about risk sharing and the problem of many hands, this article develops a conceptual framework for the governance of the public role of platforms, and elaborates on the concept of cooperative responsibility for the realization of critical public policy objectives in Europe. It argues that the realization of public values in platform-based public activities cannot be adequately achieved by allocating responsibility to one central actor (as is currently common practice), but should be the result of dynamic interaction between platforms, users, and public institutions.

16-01-2018

Rethinking Normal Exploitation: Enabling Online Limitations in EU Copyright Law

Quintais, J.

The adoption of limitations to copyright is regulated at international and EU level by the three-step test. The major obstacle to new limitations for online use is a strict interpretation of the test, namely its second step, according to which a limitation shall not conflict with the normal exploitation of works. This article examines the test with a focus on the second step and its application to the digital and crossborder environment. It argues for a flexible and policy-oriented reading of the concept of normal exploitation. Following this approach could enable the introduction of new online limitations in EU law. In particular, within the context of current EU copyright reform, a flexible interpretation could support the introduction of a mandatory and unwaivable limitation for user-generated content.

11-01-2018

Annotatie bij EHRM 15 oktober 2016 (Perinçek / Zwitserland)

Dommering, E.

Uitlatingen van een Turkse politicus over de Armeense genocide (waarvan hij het bestaan ontkende) ten onrechte in Zwitserland veroordeeld.

05-01-2018

Copyright, Doctrine and Evidence-Based Reform

van Gompel, S.

Copyright 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.

05-01-2018

Annotatie bij EHRM 8 november 2016 (Bizottság / Hongarije)

Dommering, E.

Het EHRM erkent onder voorwaarden dat er een recht op openbaarheid van bestuur uit artikel 10 is af te leiden.

19-12-2017

“Fake news”: False fears or real concerns?

McGonagle, T.

‘‘Fake news’’ has become a much-used and much-hyped term in the so-called ‘‘post-truth’’ era that we now live in. It is also much-maligned: it is often blamed for having a disruptive impact on the outcomes of elections and referenda and for skewing democratic public debate, with the 2016 US Presidential elections and Brexit referendum often cited as examples. ‘‘Fake news’’ has also been flagged for fuelling propaganda and ‘‘hate speech’’ and even violence. ‘‘Pizzagate’’ is an infamous example of exceptional circumstances in which a false news story had a central role in a shooting incident. In December 2016, a man in Washington D.C. took it upon himself to ‘‘self-investigate’’ a story (a completely unfounded conspiracy theory) that the Hillary Clinton campaign team was running a paedophile ring from the premises of a pizzeria. Shots were fired and he was arrested and charged with assault and related offences. Given all this bad press, it is perhaps little wonder that ‘‘fake news’’ has become a major preoccupation for international organisations, national law- and policy-makers, the media and media actors, civil society and academia. But what exactly is ‘‘fake news’’ and what is all the fuss about? In addressing these questions, this column will also consider historical and contemporary perspectives on the term and its relationship with human rights.

05-12-2017

Online prijsdiscriminatie en de Algemene Verordening Gegevensbescherming

Poort, J.

Zuiderveen Borgesius, F.

Hoofdstuk in: Big Data. Honderd jaar Juridische Faculteitsvereniging Grotius / N.P. van der Elst (ed.), 2017

28-11-2017

Het einde van de Auteurswet nadert. Veertig jaar harmonisatie van het auteursrecht in Europa (1977-2017)

Hugenholtz, P.

De geschiedenis van de harmonisatie van het auteursrecht valt samen met die van dit tijdschrift. Dit artikel is opgedragen aan J.H. (Jaap) Spoor, die als AMI-redactielid van het eerste uur veertig jaar harmonisatie onverschrokken aan zich voorbij zag gaan. Veertig jaar geleden, in de rubriek ‘internationaal nieuws’ van het allereerste nummer van Auteursrecht, werd bericht dat de Europese Commissie onderzoek had laten doen naar de verschillen tussen de nationale auteurswetten in de Europese Gemeenschap. Het door dr. A. Dietz van het Max Planck Instituut in München in het Duits geschreven rapport was sinds kort ‘als xerografische, in twee delen geniete uitgave verkrijgbaar bij de Europese Commissie’. Dit was het begin van de harmonisatie van het auteursrecht in Europa, die in de decennia daarna diepe sporen zou trekken door het Nederlandse recht – sporen die slechts ten dele zichtbaar zijn in de huidige bewoordingen van de Nederlandse Auteurswet.

23-11-2017

Who owns the broadcasting archives? Unravelling copyright ownership of broadcast content

Simone Schroff

Archives across the Netherlands are tasked to make their archives accessible online. However, progress has been slow, not least because it is difficult to determine who owns the rights to make works available online. Focusing on the Dutch public service radio and TV broadcasting sectors, this book addresses this challenge. First, it disentangles the nature of broadcasts by providing guidance on which aspects of a TV or radio broadcast can attract protection and who owns these. Secondly, it empirically establishes that the default ownership rules can only provide an incomplete picture of the rights ownership in the public service broadcasting sector: the ownership is more concentrated than copyright and neighbouring rights law suggests. Who owns the broadcasting archives? shows how different legal scenarios can explain this rights concentration and establishes their likely practical influence on industry practice in the public service broadcasting sector across time.

17-11-2017

De Hoge Raad en Mein Kampf: Over een veranderde maar ongewisse koers

Dommering, E.

In: Verandering van Koers, H.A. Groen c.s. red., Uitgeverij Datawyse 2017, ISBN 9789462957404, p. 13-20.

16-11-2017

Annotatie bij Hof van Justitie EU 19 oktober 2016 (Breyer, C-2016/779)

Dommering, E.

Is een 'dynamisch' IP adres een persoonsgegeven? Verzoek om een prejudiciële beslissing ingediend door het Bundesgerichtshof (hoogste federale rechter in burgerlijke en strafzaken, Duitsland) bij beslissing van 28 oktober 2014. Verwerking van persoonsgegevens. Begrip, persoonsgegevens’. Internetprotocoladressen. Bewaring door een aanbieder van onlinemediadiensten. Nationale regeling volgens welke geen rekening kan worden gehouden met het gerechtvaardigde belang van de voor de verwerking verantwoordelijke persoon.

14-11-2017

Should Fundamental Rights to Privacy and Data Protection be a Part of the EU's International Trade "Deals"?

Yakovleva, S.

This article discusses ways in which the General Agreement on Trade in Services (GATS) and post-GATS free trade agreements may limit the EU's ability to regulate privacy and personal data protection as fundamental rights. After discussing this issue in two dimensions – the vertical relationship between trade and national and European Union (EU) law, and the horizontal relationship between trade and human rights law – the author concludes that these limits are real and pose serious risks. Inspired by recent developments in safeguarding labour, and environmental standards and sustainable development, the article argues that privacy and personal data protection should be part of, and protected by, international trade deals made by the EU. The EU should negotiate future international trade agreements with the objective of allowing them to reflect the normative foundations of privacy and personal data protection. This article suggests a specific way to achieve this objective.

09-11-2017

Challenged by news personalisation: five perspectives on the right to receive information

Eskens, S.

Helberger, N.

Möller, J.

More and more news is personalised, based on our personal data and interests. As a result, the focus of media regulation moves from the news producer to the news recipient. This research asks what the fundamental right to receive information means for personalised news consumers and the obligation it imposes on states. However, the right to receive information is under-theorised. Therefore, we develop a framework to understand this right, starting from case law of the European Court of Human Rights. On this basis, we identify five perspectives on the right to receive information: political debate, truth finding, social cohesion, avoidance of censorship and self-development. We evaluate how news personalisation affects the right to receive information, considering these five different perspectives. Our research reveals important policy choices that must be made regarding personalised news considering news consumers’ rights.

07-11-2017

The Japan EU Economic Partnership Agreement: Flows of Personal Data to the Land of the Rising Sun

Bartl, M.

Irion, K.

At the EU-Japan Summit in July this year the European Union (EU) and Japan have achieved a political agreement in principle on the content of the Japan EU Economic Partnership Agreement. For Japan including data flows in the trade deal with the EU has been an important political goal besides mutual recognition of their privacy laws. The EU is currently not favorably disposed to allow data flows provisions into trade deals. Building a ‘state of the art’ digital economy between Japan and the EU is certainly possible in conformity with their data privacy laws and the classical trade law disciplines. Our brief unpacks how flows of personal data will governed in the relationship between Japan and the EU. As a point of departure we look at the extent to which the prospective trade deal between the two economies would already cover data flows, including personal data. Next, we will take a look at the prospects for a regulatory handshake between Japan and EU providing for mutual recognition of data privacy and flows of personal data. The brief concludes with findings and recommendations on the future directions of Japan EU Economic Partnership Agreement.

25-10-2017

About finding practical solutions (without the GDPR)

van Eijk, N.

Foreword.

19-10-2017

Unfair Commercial Practices: A Complementary Approach to Privacy Protection

Hoofnagle, C.J.

Kannekens, E.

van Eijk, N.

Millions of European internet users access online platforms where their personal data is being collected, processed, analysed or sold. The existence of some of the largest online platforms is entirely based on data driven business models. In the European Union, the protection of personal data is considered a fundamental right. Under Article 8(3) of the EU Charter of Fundamental Rights, compliance with data protection rules should be subject to control by an independent authority. In the EU, enforcement of privacy rules almost solely takes place by the national data protection authorities. They typically apply sector-specific rules, based on the EU Data Protection Directive. In the United States, the Federal Trade Commission is the primary enforcer of consumers’ (online) privacy interests. The agency’s competence is not based on the protection of fundamental rights, but on the basis that maintenance of a competitive, fair marketplace will provide the right choices for consumers to take. In this Article the US legal framework will be discussed and compared to the EU legal framework, which forms our finding that in the EU rules on unfair commercial practices could be enforced in a similar manner to protect people’s privacy. In the EU, the many frictions concerning the market/consumer-oriented use of personal data form a good reason to actually deal with these frictions in a market/consumer legal framework.

19-10-2017

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