Keyword: Fundamental rights

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

Yakovleva, S.
World Trade Review, vol. 2018, pp: 477-508, 2017

Abstract

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.

Data protection, European Union, frontpage, Fundamental rights, international trade, Privacy

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Unfair Commercial Practices: A Complementary Approach to Privacy Protection external link

van Eijk, N., Hoofnagle, C.J. & Kannekens, E.
European Data Protection Law Review, vol. 2017, num: 3, pp: 325-337, 2017

Abstract

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.

frontpage, Fundamental rights, Online platforms, Personal data, Privacy, unfair commercial practices

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Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability external link

Angelopoulos, C. & Smet, S.
Journal of Media Law, vol. 8, num: 2, pp: 266-301, 2017

Abstract

In recent years, Europe’s highest courts have searched for the answer to the problem of intermediary liability in the notion of a ‘fair balance’ between competing fundamental rights. At the same time, the ‘notice-and-takedown’ system, which first emerged as a solution to intermediary liability in the 1990s, has spread across the globe, transforming along the way into an assortment of ‘notice-and-action’ variants that differ from country to country. In this article, we seek to examine how both these approaches to the intermediary liability question can be usefully combined. Interpreting ‘fair balance’ as a call for compromise, we propose a move away from the traditional ‘horizontal’ approach of the EU's safe harbour regime, towards a more ‘vertical’ scheme, whereby distinct ‘actions’ are tailored to diverse wrong-doings: notice-and-notice for copyright, notice-wait-and-takedown for defamation and notice-and-takedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down can function as a complementary all-purpose solution. Automatic takedown and notice-and-stay-down are applicable exclusively to child pornography. We suggest that the resulting calibrated system can contribute to achieving a truer ‘fair balance’ in this difficult area of law.

CJEU, ECtHR, fair balance, frontpage, Fundamental rights, intermediary liability, notice-and-action

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Smart TV and the online media sector: User privacy in view of changing market realities external link

Irion, K. & Helberger, N.
Telecommunications Policy, vol. 41, num: 3, pp: 170-184, 2017

Abstract

Smart TV and online media enable precise monitoring of online media consumption, which also forms the basis for personalised recommendations. This new practice challenges EU policy in two respects. Firstly, the legality of monitoring individual media consumption and using personal data of users is primarily addressed under data protection law. Secondly, tracking of viewing behaviour and personalisation of media content can also affect individuals’ freedom to receive information, as well as the realisation of media policy objectives such as media freedom and pluralism, implications that so far are not reflected in media law and policy, or only marginally. This article addresses the increasing reliance on personal data and personalised services in the audiovisual and online media sector and queries the appropriateness of the legal status quo in light of implementation and enforcement actions in Germany and the Netherlands. The analysis concludes with a call for media policy makers and regulators to pay more attention to the issue of ‘smart surveillance’ of media users, and develops a number of concrete recommendations on how to accommodate the specific privacy concerns of media users.

frontpage, Fundamental rights, Media consumption, Media policy, Monitoring, Online media, Privacy, Smart TV

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International copyright reform in support of open legal information (working paper draft, Sep. 2016) external link

van Eechoud, M. & Guibault, L.
2016

Abstract

This paper analyzes the status of legal information under international and national copyright laws. It argues that the current uncertainties with respect to the copyright status of primary legal materials (legislation, court decisions) and secondary legal materials such as parliamentary records and other official texts relevant to the interpretation of law, constitute a barrier to access and use. The time has come for reform of the international copyright system in WIPO. International law should recognize explicitly that primary and secondary legal materials are public domain and thus not subject to copyright or related rights. This will bring outdated copyright norms across the world up to date with current developments: the trend towards universal recognition of the right to access government information as part of human rights, the UN’s sustainable development goals with respect to access to law, and the rapid growth of open government policies worldwide, supported by the Open Government Partnership (OGP).

access to law, Copyright, Freedom of expression, frontpage, Fundamental rights, open government, right to know

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Securing Private Communications: Protecting Private Communications Security in EU Law – Fundamental Rights, Functional Value Chains and Market Incentives external link

Arnbak, A.
Kluwer Law International, 2016, Series: Information Law Series, ISBN: 9789041167378

Abstract

Securing Private Communications. Protecting Private Communications Security in EU Law – Fundamental Rights, Functional Value Chains and Market Incentives, offers a conceptual and legislative toolkit that helps in building a step-by-step regulatory model in EU law. This book argues for a stricter stance on protecting private communications security. Increasingly, it has become clear that any communicative act online is subject to breach by intelligence agencies, cybercriminals, advertising networks, employers, and corporate data miners, to mention the most obvious intruders. Internet users, seeing no other choice than to hop onto the web-based bandwagon, have come to depend on a networked communications environment that is fundamentally insecure. Now lawmakers, worldwide, are gearing up to intervene. This book provides a comprehensive overview of the current European regulatory framework on communications security and offers a multidisciplinary study on EU communications security law. The history of the past 25 years of EU communications security law is analyzed in-depth. The regulatory model proposed is tested on HTTPS, which covers the user–provider relationship in web browsing, and on ‘cloud’ communications that affect interdomain and intradomain communications. Case studies included in the book are based on the infamous DigiNotar breach and the MUSCULAR program, disclosed by whistle-blower Edward Snowden, and contain original legal, security economic, and computer science research, conducted jointly with scholars trained in these disciplines.

Fundamental rights, Information security, Kluwer Information Law Series

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Back to Black: justice.cn external link

Tsoutsanis, A.
Journal of Intellectual Property Law & Practice, num: 10, pp: 725., 2015

Abstract

This short - peer reviewed - article touches on innovation in China in the field of smart phones, recent legislative reform in China for fostering intellectual property and combating counterfeit and trade mark grabbing. It also touches on human rights in China, the different approach in which the West advances its economic v human rights agenda and the selective way Silicon Valley industry participates in grass roots debate on civil liberties. The article also touches on the 'right to seek counsel' as one of the fundamental rights, which many arrested lawyers in China were deprived of during the July 2015 arrests.

bad faith, China, counterfeit, Fundamental rights, Human rights, innovation, Intellectual property, national security law, Patent law, Trademark law

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The Court of Justice and the Data Retention Directive in Digital Rights Ireland external link

Irion, K.
European Law Review, num: 6, pp: 835-850., 2015

Abstract

In Digital Rights Ireland, the Court of Justice invalidated the 2006 Data Retention Directive, which required private providers to retain for a considerable period electronic communication metadata for law enforcement purposes. In this landmark ruling, the EU judiciary introduced a strict scrutiny test for EU legislative acts that interfere seriously with important rights protected by the Charter of Fundamental Rights and the European Convention on Human Rights—in this case, the rights to privacy and data protection—and applied a rigorous assessment of the proportionality of the measure under the Charter, criticising numerous aspects of the Directive. This article presents and analyses the judgment, discussing its implications for constitutional review and constitutionalism in the European Union, and the substantive and procedural constraints that it imposes on EU and national data retention schemes. It concludes by reflecting on the ruling’s impact on European integration and data related policies.

Data protection, data retention, electronic communications, EU law, Fundamental rights, Grondrechten, Ireland, Personal data, Privacy, proportionality

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