Privacy self-regulation and the changing role of the state: from public law to social and technical mechanisms of governance

This paper provides a structured overview of different self-governance mechanisms for privacy and data protection in the corporate world, with a special focus on Internet privacy. It also looks at the role of the state, and how it has related to privacy self-governance over time. While early data protection started out as law-based regulation by nation-states, transnational self-governance mechanisms have become more important due to the rise of global telecommunications and the Internet. Reach, scope, precision and enforcement of these industry codes of conduct vary a lot. The more binding they are, the more limited is their reach, though they - like the state-based instruments for privacy protection - are becoming more harmonised and global in reach nowadays. These social codes of conduct are developed by the private sector with limited participation of official data protection commissioners, public interest groups, or international organisations. Software tools - technical codes - for online privacy protection can give back some control over their data to individual users and customers, but only have limited reach and applications. The privacy-enhancing design of network infrastructures and database architectures is still mainly developed autonomously by the computer and software industry. Here, we can recently find a stronger, but new role of the state. Instead of regulating data processors directly, governments and oversight agencies now focus more on the intermediaries - standards developers, large software companies, or industry associations. And instead of prescribing and penalising, they now rely more on incentive-structures like certifications or public funding for social and technical self-governance instruments of privacy protection. The use of technology as an instrument and object of regulation is thereby becoming more popular, but the success of this approach still depends on the social codes and the underlying norms which technology is supposed to embed. --

Privacy self-regulation and the changing role of the state : from public law to social and technical mechanisms of governance

This paper provides a structured overview of different self-governance mechanisms for privacy and data protection in the corporate world, with a special focus on Internet privacy. It also looks at the role of the state, and how it has related to privacy selfgovernance over time. While early data protection started out as law-based regulation by nation-states, transnational self-governance mechanisms have become more important due to the rise of global telecommunications and the Internet. Reach, scope, precision and enforcement of these industry codes of conduct vary a lot. The more binding they are, the more limited is their reach, though they – like the state-based instruments for privacy protection – are becoming more harmonised and global in reach nowadays. These “social codes” of conduct are developed by the private sector with limited participation of official data protection commissioners, public interest groups, or international organisations. Software tools - “technical codes” - for online privacy protection can give back some control over their data to individual users and customers, but only have limited reach and applications. The privacy-enhancing design of network infrastructures and database architectures is still mainly developed autonomously by the computer and software industry. Here, we can recently find a stronger, but new role of the state. Instead of regulating data processors directly, governments and oversight agencies now focus more on the intermediaries – standards developers, large software companies, or industry associations. And instead of prescribing and penalising, they now rely more on incentive-structures like certifications or public funding for social and technical self-governance instruments of privacy protection. The use of technology as an instrument and object of regulation is thereby becoming more popular, but the success of this approach still depends on the social codes and the underlying norms which technology is supposed to embed

Smart contract disputes and public policy in the ASEAN+6 region

Smart contracts provide some benefits, such as better facilitation for contracting parties to monitor performance of their obligation and reducing the cost spent monitoring the contract. However, it is critical to understand various limitations of this concept as well as many legal and public policy uncertainties around it. Given the non-existence of an “universal rule” that governs smart contracts, the issues vary from jurisdiction to jurisdiction. The article applies comparative legal method to analyse the legal regulation of smart contracts in ASEAN+6 countries as well as the leading jurisdictions in the sphere of implementing digital technologies in the economy. Due to public policy considerations, there are different scenarios of smart contract development. The possible outlook is that ASEAN+6 countries would not accept smart contract as contract, cryptocurrency as property, and/or enforcing foreign awards that relate to smart contract disputes and/or cryptocurrency. Another possible way out of the deadlock is to govern relations under smart contracts by the UNIDROIT Principles. However, if the parties do not opt for such a solution, the determination of the applicable law will be left to the relevant conflict-of-laws rules with all of the uncertainties. Therefore, the author suggests that supranational laws is the better path for avoiding uncertainties in smart-contractual relationships

INTERNET SURVEILLANCE TECHNOLOGIES AND THE RIGHT TO PRIVACY: AN INTERNATIONAL PERSPECTIVE

Ph.DDOCTOR OF PHILOSOPH