Legal Studies Research Paper Series Vol. 14, No. 2

The Faculty has published Volume 14 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

David Erdos: An Accurate Thumbnail of European Data Protection and Search Engine Indexing? Exploring C-460/20 TU, RE v Google LLC (2022) (3/2023)

Whilst the Google Spain line of case law from 2014 has provided a real remedy for hundreds of thousands of individuals, this note argues that TU, RE v Google LLC shows that it has also involved the creation of a highly uncertain and contestable lex specialis. Whilst a balance between fundamental rights must be assured, legislative provisions should presumptively be applied as written. In contrast, the Court’s judgment only selectively cites General Data Protection Regulation (GDPR) provisions even vis-à-vis its ex post rights and avoids detailed analysis. For example, although great weight in placed on the broadly worded exemption from the right to erasure (art. 17(3)(a)), it is unacknowledged that the right to rectification (art. 16) and to object (art. 21) fall outside this and that a right to restriction applies “for a period enabling the controller to verify the accuracy of the personal data” (art. 18(1)(a)). The Court’s exclusion of investigative duties cuts across this and it is anyway unclear why they should be considered an excessive burden for Google. In contrast, the judgment does preserve the essence of the data protection principles when there are ongoing legal proceedings, when significant inaccuracy is proved and more generally as regards thumbnail images. A more exacting approach remains necessary when questionable accuracy is but one element supporting delisting.

Emma Leong & Jodi Gardner: Open Banking in the UK and Singapore: Open Possibilities for Enhancing Financial Inclusion (4/2023)

A complex relationship exists between open banking – the technological advancement of financial services through sharing of consumer data – and financial inclusion. This article analyses the implementation and regulation of open banking in the United Kingdom and Singapore, critically evaluating opportunities and challenges for utilising open banking when tackling financial inclusion.

Nicholas McBride: The Nature of Evil (5/2023)

This 30 page paper sets out the argument about the nature of evil that will comprise the first half of a book I hope to work on entitled 'Deliver Us From Evil: Essays on the Limits of Law'. It criticises existing definitions of evil and offers a (relatively) novel definition of evil that better fits the way we think about what is and is not evil, and also accounts for the repulsiveness of evil. After reflecting on how we can classify evildoers, and the characteristic targets of evil, it concludes by setting out the ways in which evil places limits on (a) what respect for the rule of law demands; (b) the validity of laws; and (c) how much law can do to eradicate evil.

Tim Cochrane: Digital Privacy Rights and CLOUD Act Agreements (8/2022)

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and enhancing civil liberties.” This article interrogates that claim, exploring the impact of CLOUD Act agreements on digital privacy rights under the Fourth Amendment to the US Constitution and Article 8 of the European Convention on Human Rights. Emerging literature is deeply divided: US scholars typically view these agreements as neutral or rights-enhancing, while Europeans and others generally fear a reduction in rights compared with MLA. By separately considering the impact of the US-UK Agreement on each of three classes of impacted persons, US persons, UK persons, and third country persons (TCPs)—i.e. everyone else—these diverging views appear to be each partly right and partly wrong. While this agreement will likely be an overall relative improvement for the digital privacy rights of US and UK persons, it will further undermine these rights for TCPs, contrary to the US and UK’s claimed aims. To address this, the US and UK should voluntarily extend Fourth Amendment and Article 8 protections, respectively, to implicated TCPs. This would be readily achievable, largely consistent with judicial trends, and encourage a more robust rights-respecting approach to international data transfers globally.

Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.