Posts Tagged New Technologies

Proposition Walhalla. ‘The algorithms of the law must keep pace with new and emerging technologies.’

‘The algorithms of the law must keep pace with new and emerging technologies’ is the opening sentence of Hadon-Cave LJ and Swift J in R v The Chief Constable of South Wales Police and others [2019] EWHC 2341.

The central issue is whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilized society. the High Court finds it is. No doubt appeal will follow. I leave the assessment of the findings of the Court to others. It is the opening sentence which drew my attention as, inevitably, it did others’. It is a sentence upon which one can hinge en entire regulatory /new technologies course. Must the algorithms of the law (whatever these may be) keep pace with technology?  Or rather, guard against the challenges of same?

Discuss.

Geert.

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The innovation principle’s continued journey.

A short update on the innovation principle‘s continued (corporate-sponsored, let’s be frank) journey.

Thank you first of all prof Maria Lee for signalling the UK’s planned introduction of an ‘innovation test’, to be piloted as part of industrial strategy. Its goal is expressed as ‘We will create an outcome-focused, flexible regulatory system that enables innovation to thrive while protecting citizens and the environment.’ Not much more detail is given. Formulated as such, it does nothing that the current EU regulatory model does not already address – its true goal undoubtedly is a post-Brexit libertarian regulatory environment.

Further, Nina Holland observed with eagle eyes the link between Nafta 2.0 (USMCA) and innovation, in particular Article 12-A-4 ‘parties’ “recognize the importance of developing and implementing measures in a manner that achieves their respective level of protection without creating unnecessary economic barriers or impediments to technological innovation’ (like the UK initiative: meaningless for already addressed by current international trade agreements; the real intention actually is deregulation). American industry has been arguing that the US should ‘build on’ the new NAFTA when negotiating with the EU (should TTIP ever be resuscitated).

Geert.

 

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Ghostbusters and the Marshmallow Man. The European Commission covert consultation and study on the innovation principle.

I have reported before on the innovation principle, the industry efforts behind it and the European Commission response to same. I have linked our initial paper as well as media and other reports in an earlier posting. The most comprehensive overview of the genesis of the principle is included here.

One of the comments I made in that earlier post is that Commissioner Moedas has emphasised verbatim that the innovation principle is not binding EU law: ‘“I think we have some misunderstanding here … The Horizon Europe proposal does not in any way establish the innovation principle or incorporate it into EU law. It is referred to in the recitals but it is not something that is [in] the proposal,” he said.

At the end of the original Ghostbusters movie, a giant Marshmallow Man appears as a result of the main ghost’s conjuring up himself as the physical manifestation of the first thought popping up into the mind of the lead characters’ mind (further info here). The road to turning the imagination of the innovation principle into reality is currently equally continuing with no less than a Commission-ordered Consultation Report, from the Centre for European Policy Studies, on the evaluation of the innovation principle: see the Directorate-General’s invitation letter and the questionnaire.

Both documents reached me via a little Berlaymont bird. I have anonymised individuals mentioned in the documents and I have also changed the order of questions in the questionnaire just in case individual copies were drafted to facilitate the coveted ‘confidentiality’ – contents of the questionnaire have stayed the same. The questionnaire is meant for ‘selected stakeholders’ who are instructed not to ‘share, quote or cite it’.

The principle even if it does exist certainly does not do so in EU law – as confirmed by the Commissioner. Yet it is his DG which has instructed CEPS to carry out the study, confidentially: not exactly a driving principle of the Better Regulation Agenda to which the documents purport to answer.

The invite states that ‘the overall aim of this evaluation is to describe the status quo and prepare recommendations for future action in accordance with the better regulation guidelines. These recommendations will serve to apply the Innovation Principle in a way which helps the achievement of EU policy objectives and is consistent with identified stakeholder needs.’

The text pays lip service to the general interest which ‘innovation’ is meant to serve, yet also repeatedly emphasises that existing regulatory hurdles to ‘innovation’ ought to be classified and potentially removed; that the EC may take the necessary steps to initiate this; and nowhere does it question the very existence of the principle.

It is noteworthy in this respect that Horizon Europe, Europe’s next flagship research and development program, refers drastically less to responsibly research and innovation -RRI than did its predecessor. Parliament did not halt references to the innovation principle in its recitals.

I would like to emphasise again that with my co-authors of the paper, I am not an unshakable opponent of the introduction of an innovation principle. Provided the discussion on it is done in the appropriate institutions and at the very least in the public domain. A confidential survey confirms the reactionary character which this principle so far represents on the EU scene.

Geert.

 

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Towards an innovation principle: our paper on an industry horse knocking at the EU door.

Update 14 December 2018 Parliament failed to halt references to the innovation principle in Horizon Europe – initial report here, I shall have a post soon. Of crucial note is that Commissionner Moedas has emphasised verbatim that the innovation principle is not binding EU law: from the Politico Report: ‘“I think we have some misunderstanding here … The Horizon Europe proposal does not in any way establish the innovation principle or incorporate it into EU law. It is referred to in the recitals but it is not something that is [in] the proposal,” he said.
Moedas continued: “We need an innovation principle as we need a precautionary principle. Both are complimentary.”
Commission officials say the innovation principle does not have the same legal weight as the precautionary principle, which is included in the EU treaties.

Update 12 December 2018. There has been quite a bot of noise around the principle in recent days – see our comments in pieces by Le Monde, Politico, and Follow the Money.

Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.

Happy reading.

Geert.

(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.

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It’s true! Belgian Supreme Court confirms order for Yahoo! to hand over IP-addresses.

Jurisdiction and the internet is a topic which has featured once or twice on this blog recently (and in a  paper which I have already referred to in those earlier postings). Belgian’s Supreme Court in ordinary (the Hof van Cassatie /Cour de Cassation) employed the objective territoriality principle in a case with roots going back to 2007 (the fraudulent purchase of and subsequent failure to pay for electronic equipment from a shop in Dendermonde, Belgium), Yahoo! was requested to hand over the IP addresses associated with e-mail accounts registered to Yahoo!’s e-mail service. Yahoo! Inc, domiciled in California, refused to comply, triggering fines under criminal law. (It’s corporate slogan btw used to be ‘it’s true!’ Hence the title of the post).

Responding to Yahoo!s claims that Belgium was imposing its criminal laws extraterritorially, the Court of Appeal had held that Yahoo! is territorially present in Belgium, hereby voluntarily submitting itself to the jurisdiction of the Belgian authorities: it takes an active part in economic life in Belgium, among others by use of the domain name http://www.yahoo.be, the use of the local language(s) on that website, pop-up of advertisements based on the location of the users, and accessibility in Belgium of Belgium-focussed customer services (among others: a ‘Belgian’ Q&A, FAQ, and post box). [Notice the similarity with the Pammer /Alpenhof criteria]. The Court of Appeal had suggested that the accusations of extraterritoriality could only be accepted had there been a request for the handover of data or objects which are located in the USA, with which there is no Belgian territorial link whatsoever, and if the holder of these objects or data is not accessible in Belgium (either physically or virtually).

The Supreme Court on 1 December confirmed all of the Court of Appeal’s arguments, essentially linking them to the objective territoriality principle. Yahoo! actively directs its activities towards consumers present in Belgium.

Even though the case involves a criminal proceeding, the Court’s judgment inevitably (not necessarily justifiably) will be used as further support for the Belgian tussle with Facebook.

Geert.

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A bar to ‘extraterritorial’ EU law. Landgericht Koln refuses to extend ‘right to be forgotten’ to .com domain .

Postcript 11 March 2016 Google have announced a new policy which  goes some way to addressing the EU’s concerns. An unusually conciliatory move.

An inevitable consequence of the rulings in Google Spain, Weltimmo and Schrems /Facebook /Safe harbour, is whether courts in the EU can or perhaps even must insist on extending EU data protection rules to websites outside of EU domain. The case has led to suggestions of ‘exterritorial reach’ of Google Spain or the ‘global reach’ of the RTBF, coupled with accusations that the EU oversteps its ‘jurisdictional boundaries’. This follows especially the order or at least intention, by the French and other data protection agencies, that Google extend its compliance policy to the .com webdomain.

The Landgericht Köln mid September (the case has only now reached the relevant databases) in my view justifiably withheld enforcement jurisdiction in a libel case only against Google.de for that is the website aimed at the German market. It rejected extension of the removal order vis-à-vis Google.com, in spite of a possibility for German residents to reach Google.com, because that service is not intended for the German speaking area and anyone wanting to reach it, has to do so intentionally. (See the ruling under 1, para 3 and 4).

I have further context to this issue in a paper which is on SSRN and which is being peer reviewed as we speak (I count readers of this blog as peers hence do please forward any comments).

Geert.

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The EU’s ‘Bio economy’. Utopian?, realistic?, protectionist? Or all of these?

I have just recently stumbled across the EU’s Bioeconomy strategy, classified in the administrative organogram at least under ‘Research and innovation’. It could also be DG Industry. Or DG Trade. Or DG  Env. Or indeed DG Agri. Tucking it away under Research and innovation was a good idea, I believe: best to keep it safely away from daily policy concerns and ditto lobbying. The Bioeconomy – which is defined as encompassing the sustainable production of renewable resources from land, fisheries and aquaculture environments and their conversion into food, feed, fiber bio-based products and bio-energy as well as the related public goods – is seen by the EC as a successor to the EU’s Biosociety program, which however was more scientific in outlook (lots of talk of new technologies).

A big gap in its approach, to me at least, is its lack of discussion on reduced consumption and ‘need‘ (the Club of Rome has some powerful insight into this) which is a pitty. It talks mostly about increasing and diversifying ‘output’, rather than on reducing it or matching it to true need. For in its current outlook, the Bioeconomy feels more like a postersite for EU ‘innovative’ technologies than one for foresight in development priorities. And no, that is not properly done elsewhere in the EC.

Geert.

 

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