Archive for category EU law – General

Draft European ethics guidelines for trustworthy artificial intelligence.

An ethics-related posting seems apprioprate as last before ‘the’ season.

The relevant European expert group seeks feedback on draft ethics guidelines for trustworthy artificial intelligence.

Chapter I deals with ensuring AI’s ethical purpose, by setting out the fundamental rights, principles and values that it should comply with.
From those principles, Chapter II derives guidance on the realisation of Trustworthy AI, tackling both ethical purpose and technical robustness. This is done by listing the requirements for Trustworthy AI and offering an overview of technical and non-technical methods that can be used for its implementation.
Chapter III subsequently operationalises the requirements by providing a concrete but nonexhaustive assessment list for Trustworthy AI. This list is then adapted to specific use cases.

Of particular note at p.12-13 are the implications for the long term use of AI, on which the expert group did not reach consensus. Given that autonomous AI systems in particular have raised popular concern, most of which predicted in the longer term, it is clear that this section could prove particularly sticky as well as interesting.

For me the draft is a neat warm-up for when the group’s co-ordinator, Nathalie Smuha, returns to Leuven in spring to focus on her PhD research with me on the very topic.

Geert.

 

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EDPB guidelines on the territorial reach of the GDPR: Some clear conflicts overlap.

GDPR (General Data Protection Regulation) aficionados will have already seen the draft guidelines published by the EDPB – the European data protection board – on the territorial scope of the Regulation.

Of particular interest to conflicts lawyers is the Heading on the application of the ‘targeting’ criterion of GDPR’s Article 3(2). There are clear overlaps here between Brussels I, Rome I, and the GDPR and indeed the EDPB refers to relevant case-law in the ‘directed at’ criterion in Brussels and Rome.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.3, Heading 2.2.8.2.5.

 

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Facebook appeal against UK fine puts territoriality of data protection in the spotlight.

I have an ever-updated post on Google’s efforts to pinpoint the exact territorial dimension of the EU’s data protection regime, GDPR etc. Now, Facebook are reportedly (see also here) appealing a fine imposed by the UK’s data protection authority in the wake of the Cambridge Analytica scandal. Facebook’s point at least as reported is that the breach did not impact UK users.

The issue I am sure exposes Facebook in the immediate term to PR challenges. However in the longer term it highlights the need to clarify the proper territorial reach of both data protection laws and their enforcement.

One to look out for.

Geert.

 

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Swedish Match: Snus, precaution and the gateway effect.

A short update on the Court of Justice’s ruling in C-151/17 Swedish Match, in which yesterday it upheld the legality of Directive 2014/40’s ban on ‘snus’ and generally on tobacco products for oral consumption. (Sweden is exempt: Article 15(1) of the 1994 Act of Accession).

The Court reaffirms the bite of the precautionary principle; emphasises the ‘gateway effect’ of snus for the young, including intern alia because consumption of snus can be done very discreetly and hence enforcement of an age ban (a suggested alternative) not effective; and the importance of giving precedence to public health over economic profit.

It also, yet again, shows that measures like these do not fall out of thin air because, as proponents of the precautionary principle would suggest, anti-innovation zealots dream up restrictive measures to kill enterprise. Rather, following extensive scientific advice, the ban is a sensible and proportionate measure to take.

Geert.

EU Environmental Law, with Dr Leonie Reins, 2017, Chapter 2, Heading IV.

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Lloyd v Google. High Court rejects jurisdiction viz US defendant, interprets ‘damage’ in the context of data protection narrowly.

Update 11 December 2018 leave to appeal applied for.

Warby J in  [2018] EWHC 2599 (QB) Lloyd v Google (a class action suit with third party financing) considers, and rejects, jurisdiction against Google Inc (domiciled in the US) following careful consideration (and distinction) of the Vidal Hall (‘Safari users) precedent.

Of note is that the jurisdictional gateway used is the one in tort, which requires among others an indication of damage. In Vidal Hall, Warby J emphasises, that damage consisted of specific material loss or emotional harm which claimants had detailed in confidential court findings (all related to Google’s former Safari turnaround, which enabled Google to set the DoubleClick Ad cookie on a device, without the user’s knowledge or consent, immediately, whenever the user visited a website that contained DoubleClick Ad content.

In essence, Warby J suggests that both EU law (reference is made to CJEU precedent under Directive 90/314) and national law tends to suggest that “damage” has been extended in various contexts to cover “non-material damage” but only on the proviso that “genuine quantifiable damage has occurred”.

Wrapping up, at 74: “Not everything that happens to a person without their prior consent causes significant or any distress. Not all such events are even objectionable, or unwelcome. Some people enjoy a surprise party. Not everybody objects to every non-consensual disclosure or use of private information about them. Lasting relationships can be formed on the basis of contact first made via a phone number disclosed by a mutual friend, without asking first. Some are quite happy to have their personal information collected online, and to receive advertising or marketing or other information as a result. Others are indifferent. Neither category suffers from “loss of control” in the same way as someone who objects to such use of their information, and neither in my judgment suffers any, or any material, diminution in the value of their right to control the use of their information. Both classes would have consented if asked. In short, the question of whether or not damage has been sustained by an individual as a result of the non-consensual use of personal data about them must depend on the facts of the case. The bare facts pleaded in this case, which are in no way individualised, do not in my judgment assert any case of harm to the value of any claimant’s right of autonomy that amounts to “damage”…”

The judgment does not mean that misuse of personal data cannot be disciplined under data protection laws (typically: by the data protection authorities) or other relevant national courses of action. But where it entails a non-EU domiciled party, and the jurisdictional gateway of ‘tort’ is to be followed, ‘damage’ has to be shown.

Geert.

 

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Unstunned slaughter and organic labelling. Wahl AG opines in light of scope of harmonisation.

Wahl AG advised  last week in Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs. In this case an NGO requests a certification body to stop certifying as ‘organic’, products obtained from religious slaughter, even though neither Council Regulation 834/2007 nor the Commission implementing Regulation 889/2008 on organic production and labelling of organic products with regard to organic production, labelling and control, mention stunned or unstunned slaughter.

I suggested earlier that the case turns around scope of application, albeit that the shadow of the human rights implications hangs over it. The Advocate General agrees: at 33: ‘the Court is therefore not strictly speaking required to rule on a question of interference with the freedom to manifest one’s religion’. In essence, what is not forbidden is allowed: the legislation on organic farming is silent on the question of ritual slaughter; (at 91) this silence on the matter is not the result of oversight for the ‘slaughter’ of animals is mentioned on several occasions in the legislation – is it just simply not regulated.

A certification body therefore is not in a position to impose conditions that do not appear in the relevant legislation in order to obtain an ‘organic farming’ certification. Provided that the provisions governing the methods of raising and slaughtering of animals in order to obtain the ‘organic farming’ label are complied with, the certification body is in principle required to issue that label without adding conditions that are not laid down in the legislation.

I believe the AG is right. I also, on substance, believe that unstunned slaughter, properly carried out, meets with the ethos of organic farming.

Geert.

 

 

 

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Fremoluc: CJEU adopts a lenient (from MS standpoint) view on ‘purely internal’ measures. (External element easy to engineer, though).

In C-343/17 Fremoluc the CJEU held last week. It features as counsel no less than 4 fellow faculty at Leuven Law: 5 if one counts prof Elke Cloots whom we foolishly let escape to elsewhere – and who was the most vociferous (and, it would seem, persuasive) at the hearing, I understand. Had we had either one of my two collegae proximi who serve as judges on the CJEU assigned to the case, there would have been more residents of Collegium Falconis at Kircherg on the day of the hearing then there have recently been at Faculty meetings. But I digress.

The case essentially concerns services of general economic interests (SGEIs), as applied to the social housing sector: what kind of measures may a Member State roll-out to support the provision of such housing, in light of the free movement of not just persons but also services and capital. By extension, the case-law is also relevant to property rights restrictions across the EU.

In the case at issue applicant had seen a purchase of land torpedoed by the right of pre-emption of a relevant agency, relating to building land situated in areas earmarked for house renovation and house-building in 26 municipalities in its operating area. Fremoluc suggested the condition in the underlying decree that ‘as regards the provision of homes or land in a social housing project…, absolute priority must be given, at any stage of the project, to prospective tenants, leaseholders or buyers who have strong social, economic or socio-cultural ties with the operating area in question’, constitute an illegal condition under EU law. Consequently, it argued, the right of pre-emptive purchase itself was illegal.

The CJEU however, with reference to relevant case-law (please refer to the text of the judgment for same), held that the case was inadmissible, for it is purely internal: at 28-29: ‘it is not sufficient for the referring court to state that it is not inconceivable that nationals established in other Member States were or are interested in making use of Union provisions on fundamental freedoms to carry out activities in the territory of the Member State which enacted the national legislation in question and, consequently, that that legislation, applicable without distinction to nationals and to nationals of other Member States, is capable of producing effects which are not confined to that Member State.’ ‘The request for a preliminary ruling must clearly set out specific factors, that is, not hypothetical considerations but specific evidence, such as complaints or applications brought by operators situated in other Member States or involving nationals of those Member States, on the basis of which the required connecting link may be positively established. More particularly, the referring court may not merely submit to the Court evidence suggesting that such a link cannot be ruled out or which, considered in the abstract, could constitute evidence to that effect, and must, on the contrary, provide objective and consistent evidence enabling the Court to ascertain whether such a link exists.’

Such evidence of course in practice is easily engineered. A similar case therefore is bound to return to Luxembourg at some point soon.

Geert.

 

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