Google LLC vs Commission Nationale de l’informatique et des Libertés (CNIL)

In Google LLC v. CNIL, the Court of Justice of the European Union (CJEU or Court) held that the EU law only requires valid “right to be forgotten” “de-referencing” requests to be carried out by a search engine operator on search engine versions accessible in EU Member States, as opposed to all versions of its search engine worldwide. The ruling has been perceived as a “win” for Google and other interveners, such as Microsoft and the Wikimedia Foundation, who argued against worldwide de-referencing; while the Court has been praised for its restraint in finding that the current EU law on the “right to be forgotten” only applies within the EU. However, the CJEU went further and recognized the EU Parliament’s ability to extend the GDPR to apply extraterritorially and Member States’ ability to apply national de-referencing laws beyond their borders. Moreover, the CJEU appears to have reached these conclusions at the expense of the GDPR’s aims to harmonize the data protection framework across the EU. The decision allows Member States to decide individually the territorial scope of de-referencing obligations, thus creating the potential for different results based on where the requester resides. By creating the potential for national data protection authorities to apply stronger protections than those afforded by the GDPR, this decision could be seen as another brick in the “data privacy wall” which the CJEU has built to protect EU citizens. This note thus argues that Google LLC v. CNIL’s significance can only be understood by situating it in the broader context of CJEU’s recent data privacy decisions, which reveals the continued forcefulness of the CJEU’s stance on data protection after Snowden and Cambridge Analytica scandal

Reconceptualizing Intersectionality in Judicial Interpretation: Moving Beyond Formalistic Accounts of Discrimination on Islamic Covering Prohibitions

This article analyzes the United Nations Human Rights Committee’s (HRC) consideration of legal prohibitions on Islamic face-coverings in Yaker v. France and Hebbadj v. France, and argues that the HRC’s recognition of discrimination at play represents a significant departure from the judicial trend of accepting such prohibitions in Europe. We contend that the HRC’s limited interpretation of intersectionality in the cases elides the full extent of harms and violations arising from such legislation. However, we suggest that judicial understanding of discrimination can be enhanced by drawing on a modified UN concept of harmful traditional practices, which allows an understanding of Islamic face-covering as one among many global patriarchal practices. Decolonizing jurisprudence on intersectional discrimination in this way allows an explicit recognition and articulation of how an exclusive focus on prohibitions of practices of members of minority groups, without attention to majority patriarchal practices, contributes to legitimating sexist and racist targeting of minority groups – and entrenches sexism against women more broadly

Reinvigorating Human Rights in Internet Governance: The UDRP Procedure Through the Lens of International Human Rights Principles

An international legal framework for resolving disputes between trademark owners and domain name holders, the Uniform Domain Names Disputes Resolution Policy (“UDRP”), purports to address economic interests; however, fundamental human rights are indirectly implicated in the process (for example, the rights to freedom of expression and peaceful enjoyment of one’s property) or are ingrained within the procedure itself (such as the right to due process). The UDRP was created in 1998 by the Internet Corporation for Assigned Names and Numbers (“ICANN”), which has recently adopted in its organizational bylaws a “Core Value” of respecting “internationally recognized human rights.” In light of these institutional changes, in this Article, I chart the international human rights implications of the procedural aspects of the UDRP. I will show how the UDRP’s procedural elements raise numerous due process concerns regarding the deprivation of property rights, which are recognized in international human rights instruments, and make concrete proposals to improve procedural aspects of the policy in the upcoming UDRP review in 2020. To bring the UDRP procedure in line with “internationally recognized human rights,” the upcoming review should: (1) introduce a clear choice-of law clause in the UDRP; (2) develop uniform “Supplemental Rules” at ICANN level to increase uniformity and consistency of the UDRP system; (3) introduce a requirement to disclose and publish all UDRP decisions and statistics; (4) develop uniform standards for accreditation and selection of panelists; (5) require disclosure of conflicts of interest by panelists and Dispute Resolution Providers; (6) introduce regular comprehensive UDRP reviews; (7) reform the rules around communication, and the effectiveness of notice in particular; (8) establish an appeal procedure; and (9) explicitly acknowledge access to courts

Burning Bridges: The Automated Facial Recognition Technology and Public Space Surveillance in the Modern State

Live automated facial recognition technology, rolled out in public spaces and cities across the world, is transforming the nature of modern policing.  R (on the application of Bridges) v Chief Constable of South Wales Police, decided in August 2020, is the first successful legal challenge to automated facial recognition technology in the world. In Bridges, the United Kingdom’s Court of Appeal held that the South Wales Police force’s use of automated facial recognition technology was unlawful. This landmark ruling could influence future policy on facial recognition in many countries. The Bridges decision imposes some limits on the police’s previously unconstrained discretion to decide whom to target and where to deploy the technology. Yet, while the decision requires that the police adopt a clearer legal framework to limit this discretion, it does not, in principle, prevent the use of facial recognition technology for mass-surveillance in public places, nor for monitoring political protests. On the contrary, the Court held that the use of automated facial recognition in public spaces – even to identify and track the movement of very large numbers of people – was an acceptable means for achieving law enforcement goals. Thus, the Court dismissed the wider impact and significant risks posed by using facial recognition technology in public spaces. It underplayed the heavy burden this technology can place on democratic participation and freedoms of expression and association, which require collective action in public spaces. The Court neither demanded transparency about the technologies used by the police force, which is often shielded behind the “trade secrets” of the corporations who produce them, nor did it act to prevent inconsistency between local police forces’ rules and regulations on automated facial recognition technology. Thus, while the Bridges decision is reassuring and demands change in the discretionary approaches of U.K. police in the short term, its long-term impact in burning the “bridges” between the expanding public space surveillance infrastructure and the modern state is unlikely. In fact, the decision legitimizes such an expansion.

Burning Bridges: The Automated Facial Recognition Technology and Public Space Surveillance in the Modern State

Live automated facial recognition technology, rolled out in public spaces and cities across the world, is transforming the nature of modern policing.  R (on the application of Bridges) v Chief Constable of South Wales Police, decided in August 2020, is the first successful legal challenge to automated facial recognition technology in the world. In Bridges, the United Kingdom’s Court of Appeal held that the South Wales Police force’s use of automated facial recognition technology was unlawful. This landmark ruling could influence future policy on facial recognition in many countries. The Bridges decision imposes some limits on the police’s previously unconstrained discretion to decide whom to target and where to deploy the technology. Yet, while the decision requires that the police adopt a clearer legal framework to limit this discretion, it does not, in principle, prevent the use of facial recognition technology for mass-surveillance in public places, nor for monitoring political protests. On the contrary, the Court held that the use of automated facial recognition in public spaces – even to identify and track the movement of very large numbers of people – was an acceptable means for achieving law enforcement goals. Thus, the Court dismissed the wider impact and significant risks posed by using facial recognition technology in public spaces. It underplayed the heavy burden this technology can place on democratic participation and freedoms of expression and association, which require collective action in public spaces. The Court neither demanded transparency about the technologies used by the police force, which is often shielded behind the “trade secrets” of the corporations who produce them, nor did it act to prevent inconsistency between local police forces’ rules and regulations on automated facial recognition technology. Thus, while the Bridges decision is reassuring and demands change in the discretionary approaches of U.K. police in the short term, its long-term impact in burning the “bridges” between the expanding public space surveillance infrastructure and the modern state is unlikely. In fact, the decision legitimizes such an expansion.

Automating Government Decision-Making: Implications for the Rule of Law

This book sets out to embed access to justice into mainstream discussions on the future of law and to explore how this can be addressed in different parts of the legal industry

Tackling food marketing to children in a digital world: trans-disciplinary perspectives. Children’s rights, evidence of impact, methodological challenges, regulatory options and policy implications for the WHO European Region

There is unequivocal evidence that childhood obesity is influenced by marketing of foods and non-alcoholic beverages high in saturated fat, salt and/or free sugars (HFSS), and a core recommendation of the WHO Commission on Ending Childhood Obesity is to reduce children’s exposure to all such marketing. As a result, WHO has called on Member States to introduce restrictions on marketing of HFSS foods to children, covering all media, including digital, and to close any regulatory loopholes. This publication provides up-to-date information on the marketing of foods and non-alcoholic beverages to children and the changes that have occurred in recent years, focusing in particular on the major shift to digital marketing. It examines trends in media use among children, marketing methods in the new digital media landscape and children’s engagement with such marketing. It also considers the impact on children and their ability to counter marketing as well as the implications for children’s rights and digital privacy. Finally the report discusses the policy implications and some of the recent policy action by WHO European Member States