Is Centralised General Data Protection Regulation Enforcement a Constitutional Necessity?

Protection of personal data as a fundamental right – GDPR’s enforcement dilemma in cross-border cases – “One-stop-shop” model’s inadequacies highlighted – Distinction: regular cross-border enforcement versus cases of common European concern – Proposal: centralised enforcement mechanism for cases of common European concern – Union supervisory authority as a solution – Insufficiencies of the harmonisation proposal of the European Commission – Centralisation’s advantages: uniform enforcement, better coordination, and curbing forum shopping – Implications: fundamental rights protection and EU’s constitutional obligations – Constructive critique of the one-stop-shop model, not a dismissal – European constitutional law mandates effective data protection enforcement.publishersversioninpres

The Force Awakens: Artificial Intelligence for Consumer Law

Recent years have been tainted by market practices that continuously expose us, as consumers, to new risks and threats. We have become accustomed, and sometimes even resigned, to businesses monitoring our activities, examining our data, and even meddling with our choices. Artificial Intelligence (AI) is often depicted as a weapon in the hands of businesses and blamed for allowing this to happen. In this paper, we envision a paradigm shift, where AI technologies are brought to the side of consumers and their organizations, with the aim of building an efficient and effective counter-power. AI-powered tools can support a massive-scale automated analysis of textual and audiovisual data, as well as code, for the benefit of consumers and their organizations. This in turn can lead to a better oversight of business activities, help consumers exercise their rights, and enable the civil society to mitigate information overload. We discuss the societal, political, and technological challenges that stand before that vision

Towards Consumer-Empowering Artificial Intelligence

Artificial Intelligence and Law is undergoing a critical transformation. Traditionally focused on the development of expert systems and on a scholarly effort to develop theories and methods for knowledge representation and reasoning in the legal domain, this discipline is now adapting to a sudden change of scenery. No longer confined to the walls of academia, it has welcomed new actors, such as businesses and companies, who are willing to play a major role and seize new opportunities offered by the same transformational impact that recent AI breakthroughs are having on many other areas. As it happens, commercial interests create new opportunities but they also represent a potential threat to consumers, as the balance of power seems increasingly determined by the availability of data. We believe that while this transformation is still in progress, time is ripe for the next frontier of this field of study, where a new shift of balance may be enabled by tools and services that can be of service not only to businesses but also to consumers and, more generally, the civil society. We call that frontier consumer-empowering AI

Redefining 'property' in the digital era : when online, do as the Romans did

Through its conceptual framework, private law assumes a particular structure of the reality it aims to govern. With the digital revolution the structure of this reality has transformed. Law does not have terms and concepts to make sense out of it. This leads scholars and judges dealing with the new reality to confusion and inoperable conclusions. Law needs new concepts, but lawyers have neither a method nor the tools to create them. Firstly, the author proposes a method of internalizing new types of objects of 'property' into private law discourses. This method consists of three steps: terminological clear-up; 'mode of existence' lenses; and 'conditions-for-enforcement-backwards' analysis. The author presents and tests the method on two examples: personal data and 'virtual property'. Secondly, the author suggests a new categorization of objects of private law relations, including the new types of assets currently controlled and traded by legal subjects, abandoning material/immaterial distinction, and replacing it with a triad of res corporales, digitales and incorporales. Further, the importance of the distinction between objects ‘as such’ and their carriers is underlined. Finally, the author distinguishes between objects with primary and secondary mode of existence – the latter needing third party's action to be sustained, a positive obligation in the negative dimension of a potential property right – a complete novum for the private law ordering

Terms of service are not contracts : beyond contract law in the regulation of online platforms

This chapter is based on chapter 4.2.5. of the author's PhD thesis 'Relations

Virtual property : towards a general theory

Defence date: 20 December 2017Examining Board: Professor Giovanni Sartor, European University Institute (Supervisor); Professor Hans-Wolfgang Micklitz, European University Institute; Professor Roger Brownsword, King’s College London; Professor Bartosz Brożek, Jagiellonian UniversityThe primary contribution of the thesis is a theory enhancing the legal understanding of the phenomenon of virtual property, encompassing presentation of data and a new conceptual framework to interpret it. The author argues that the normative debates concerning the phenomenon have underestimated the importance of understanding and conceptualizing it first, and aims at amending this gap. The ‘virtual property phenomenon’ refers to the users of internet platforms and online computer games ‘possessing’ virtual items – digital objects that exist within these services – and getting into economic and social relations concerning these items, with other users, service providers and third parties. These relations are regulated by different types of service-specific rules – contractual and the ‘code’ – created unilaterally by the service providers, who additionally retain the ability to interpret and enforce them, using ‘digital force’, i.e. by modifying and deleting virtual items, and blocking users’ accounts. The primary challenge stems not from the fact that the phenomenon is not regulated, but from the fact that lawyers lack words – terms and concepts – to even conduct a meaningful debate about it, or how to respond to it. The thesis consists of six chapters. Firstly, the author describes the phenomenon and analyzes the theoretical and regulatory legal challenges posed by its emergence. Secondly, he critically assesses the state of the art. Thirdly, a methodology to address these challenges is proposed, which can also be used in other research projects concerning law and technology. Fourthly, the author explains how the process of digitalization has fundamentally challenged the assumptions that private law held about the structure of reality, and proposes new doctrinal tools to conceptualize it. Fifthly, the author presents a legally useful concept of virtual items, and argues that granting users property rights over them might not be the optimal means of realizing the property goals. Finally, the author proposes a normative solution, a correction of private law, responding to the new type of inequality in relations, namely a user protection law.Chapters 3.2.2. 'The formation of legal concepts : organic and manual acquiring of meaning'; 4.2.1. 'Objects'; 5.1.2. 'The three step-method : particularization of the Idea by the features of an object'; and 5.2.3. 'The method applied' of the thesis draws upon an earlier version published as an EUI Working Paper 2016/08 'Redefining 'property' in the digital era : when online, do as the Romans did

Big data analytics, online terms of service and privacy policies

In the digital era, consumers continuously use online services and apps for their daily activities. Too often, they do so without having a clear idea about what exactly they have agreed to or how their data is being used by the online platforms and service providers. This is because online terms of use and privacy policies are typically complex documents that are hard for the average citizen to decipher. In a sense, these terms of use and privacy policies are becoming “big data” collections themselves, representing an opportunity for new approaches in artificial intelligence and machine learning. For example, machine learning and artificial intelligence could be used to detect, extract, and categorize relevant information from the terms of use and privacy policies. In this chapter, we survey the research that addresses the recent efforts made to empower consumers via technologies that provide for the automated analysis of terms of service and privacy policies

AI governance post-GDPR : lessons learned and the road ahead

Recent breakthroughs in the development of Artificial Intelligence (AI) have initiated heated debates regarding its governance. As of today, the success of AI relies on machine learning – the ability of algorithms to learn from, and find patterns in, large amounts of data. Consequently, governance of AI will in practice mean policies regarding both the design and access to algorithms, as well as collection and usage of information. Regarding the latter, the European Union (EU) has put in place a comprehensive normative framework: the General Data Protection Regulation (GDPR)1, applicable since 25 May 2018. Based on the discussion that took place during the School of Transnational Governance’s High-Level Policy Dialogue on 26 June 2018, we present three actionable recommendations for global and local policymakers coming to grasp with the questions of AI Governanc

The empire strikes back : digital control of unfair terms of online services

Published online: 19 June 2017The authors argue that it is possible to partly automate the process of abstract control of fairness of clauses in online consumer contracts. The authors present a theoretical and empirical argument for this claim, including a brief presentation of the software they have designed. This type of automation would not replace human lawyers but would assist them and make their work more effective and efficient. Policy makers should direct their attention to the potential of using algorithmic techniques in enforcing the law regarding unfair contractual terms, and to facilitating research on and ultimately implementing such technologies