The idea that internet platforms are just conduits in the information age is withering away. But at what cost?

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The original Communications Decency Act of 1996 did not last long. Soon after it went into effect, internet companies marched to the courts challenging its compatibility with the US Constitution. But even after this legal battle, one significant provision remained.

Section 230 of the CDA stipulates that those who provide an “interactive computer service” are exempt from liability for third party content that they publish. Such a provision “was a massive win for the giant social media platforms yet to come.” By this point, “[s]earch engines were buzzing, sites proliferated, and surfing the Internet had become a daily ritual.”

In the EU, a similar approach was taken with the E-Commerce Directive in 2000. Article 14 states that “information society services” are not liable for user-generated content (UGC) uploaded to their platforms. The exception to this is where service providers have “actual knowledge” of the illegal content, in which case they must act “expeditiously” to remove or disable access to such content. …


How a 16th Century Firm Can Explain Today’s Digitised Society

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In 1599, a group of 218 merchants in London led by Sir Thomas Smythe, put their investments together to form a joint stock company. Raising over £3 million, the corporation was set up to obtain spices from the East Indies to then be sold in England for the “Honour of our Nation” and the “Wealth of our People”.

Back then a royal charter issued by the Crown was needed create a company, of which was not forthcoming until September 1600. That charter gave the company freedom from customs duties for its first six voyages, a monopoly over trade in the East Indies for 15 years and semi-sovereign privileges to rule territories and raise armies. …


The ByteDance-Beijing relationship is more familiar than one may think

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On 14 August, President Trump issued an Executive Order (EO) giving ByteDance 90 days to divest the US operations of Tik Tok, its highly popular social media platform. The EO retrospectively invalidates the 2017 acquisition of Music.ly (the predecessor to Tik Tok), and requires ByteDance, along with its subsidiaries and Chinese investors, to cease ownership of assets and data used in connection with Tik Tok.

Microsoft remains keen on acquiring the social media platform, with Oracle and Walmart recently entering the race. The interest from these various companies is not surprising: Tik Tok currently boasts around 800 million active monthly users of whom spend, on average, 52 minutes per day on the app, which is more than Facebook, Instagram and Snapchat. This is powered by a recommendation engine utilising machine learning to analyse a users’ interests and preferences as they interact with a vast pool of content. …


The Privacy Shield is dead. What next after Schrems II?

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If it reaches the ECJ, it will fail. This was the prediction of Max Schrems, the eminent privacy activist whose name is colloquially used to identify now two landmark ECJ cases on transatlantic data flows. The first was in 2015, when the Safe Harbour, a legal mechanism validating data transfers from the EU to the US, was struck down. On July 16th, the Privacy Shield suffered the same fate.

The Court was unequivocal in its decision: the Privacy Shield did not provide an adequate level of protection for EU citizens when their data are transferred to the US. Two aspects in particular were to blame. Firstly, US law does not contain the limitations on the use of certain surveillance powers by public authorities as required under EU law. Secondly, non-US persons lack an effective legal remedy against US public authorities when their rights might be infringed. …


How the use of design principles may aid compliance with data protection rules

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One of key principles of the General Data Protection Regulation is that personal data are processed lawfully, fairly and transparently. This is further evidenced by Articles 13 and 14, of which culminate in the ‘right to know’. This means that data subjects must be provided with certain information at the point that there data are first collected and processed. Such information must convey the ‘who, what, where, how and why’ of the processing operations.

The idea behind such an obligation is simple; the processing of one’s data would not be fair or transparent if people were not properly informed about the circumstances surrounding such processing. Thus, privacy notices are a way to achieve the fairness and transparency that the data subjects are entitled to have. In particular, such notices can help people avoid having to passively accept long documents of legalese without fully understanding how their data are processed and who it might be shared with. …


An election fraught with danger must be fought with careful strategy

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The UK is finally having an election. After months of speculation since Boris Johnson became prime minister, parliament has agreed to go to the polls in December.

This time though, the Conservative Party will be keen to avoid the disappointment of the 2017 election. With Theresa May at the helm, the party lost 13 seats whilst Labour gained 30. In order to avoid a similar fate, the Tories will need to succeed with three important elements of their campaign.

One of them, inevitably, will be Brexit. The strength of the Tories’ position here is that they have a deal with the EU waiting to be ratified; ‘oven ready’ as Mr Johnson . Thus, with a new Tory majority, the renegotiated Withdrawal Agreement and Political Declaration can be passed swiftly through the House of Commons to complete the first stage of Brexit without ‘dither or delay’. …


There are arguments to suggest that it is meant to be temporary

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With Theresa May finally leaving the office of Prime Minister, many thought that her Brexit deal would disappear with her. But alas, the dreaded Withdrawal Agreement the Political Declaration may still be the key to unlocking the current impasse in Westminster, as suggested by the two remaining contenders to replace May. Both Boris Johnson and Jeremy Hunt have cited changes to the backstop as a way out of the Brexit mess, yet neither has elaborated on how exactly they plan to achieve this objective.

The backstop refers to an arrangement for the UK and the EU that avoids a ‘hard border’ between Northern Ireland (NI) and the Republic of Ireland (RoI). It applies in the case the two sides are unable to agree and implement arrangements for their future relationship before the end of the transition period. This would consist of keeping the whole of the UK in a single customs territory with the EU in addition to NI applying specific rules pertaining to the EU’s internal market. …


The seeds of the Brexit impasse were planted long ago

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It seems like it will never end. Last week, the House of Commons voted against Theresa May’s Withdrawal Agreement for the third time. The House also rejected a ‘no deal’ scenario, participation in a customs union with the EU post-Brexit, and a ‘confirmatory public vote’. So far, it has been quite evident what the House doesn’t want, yet the same cannot be said for what it doeswant.

Despite this, by automatic operation of the law, the UK will leave the EU on the 12th April. This is due to the European Council’s decision to grant the UK a two-tier extension of the Article 50 process, setting the exit date at the 22nd May if the Agreement is approved, and the 12th April if not. …


The future of UK State surveillance has serious implications attached to it

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Many years ago, the most precious property one could own was their private papers. At least this was the notion exhibited in one of the landmark cases in public law, that of Entick v Carrington.

In that 18th century case, the Earl of Halifax, a member of the King’s Privy Council, issued a warrant authorising the King’s messengers to enter the premises of John Entick, accused to be the author of ‘seditious papers’ criticising His Majesty’s Government.

Entick argued that the search and seizure was unlawful, while the Crown defended the warrant on the grounds that the conduct permitted under it was necessary for the interests of the State. At the time, it was commonplace for the Crown to issue warrants for arrest for high treason and seditious libel, but warrants for search and seizure was not a recognised power. …


A solution is possible but compromise will be needed

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The UK’s withdrawal from the EU has never been simple, and Parliament has now added another complexity to the story. While Theresa May was able to reach a Withdrawal Agreement with the EU in November last year, she has faced resistance in House of Commons, which convincingly rejected her deal by 230 votes last month.

Perhaps the most contentious aspect of the Agreement is the Irish backstop. More specifically, the backstop lays out the protocol that will govern the Irish border in a post-Brexit scenario. The simple objective of the backstop is to eliminate the need to erect a hard border along the border between Northern Ireland and the Republic of Ireland, or between the islands of Ireland and Great Britain. …

About

Mahdi Assan

Privacy Pro and Editor-in-Chief at The Cyber Solicitor

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