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Friday, 21 July 2017

Intermediary and Citizen Publication in European Data Protection:  An Update on CIPIL’s 2016-17 Activities

CIPIL’s new Deputy Director, David Erdos, gives an update on CIPIL’s information law work

The relationship between ʻintermediaryʼ publishers, citizen publishers and the data protection framework has become an even more topical issue in the wake of the Court of Justice’s Google Spain ruling of 2014.  It has also become an increasingly central aspect of CIPIL’s information law work.  This news piece provides an update on some activities in this area undertaken during 2016-17 both by myself and others associated with the Centre.

David Erdos
Image credit: Privacy Laws and Business (2017) (used with permission)​

During the academic year just past, I was lucky enough to obtain two terms of research leave as a result of an ordinary sabbatical and then a CRASSH Early Career Fellowship.   I used much of this time to think, write and present on how two fundamental and interlinked changes to the information ecosystem should be conceptualized under European data protection generally and the new General Data Protection Regulation (GDPR) more specifically:  firstly, the growing capacity of potentially hundreds of millions of citizens to publish personal data related to others on a nonprofessional, amateur basis to the world at large and, secondly, the diverse but generally increasingly active processing of such data by ʻintermediaryʼ services from Blogger to Facebook to Google search engine and beyond.   At the beginning of this period, I posted a Working Paper on the first of these issues, which was later published with revisions in Computer Law and Security Review.  The following month I was kindly able to offer some preliminary thoughts on this topic in general whilst giving the WYNG-Hatton Lecture at the University of Hong Kong.  My CRASSH Fellowship in Easter 2017 provided me with a wonderful opportunity to deepen my analysis on the second set of issues.  I was also able to present on this at a variety of fora including TILTing Perspectives in May 2017 and a session of the Privacy Laws and Business Conference in Cambridge in July 2017 (which was chaired by the UK Information Commissioner Elizabeth Denham: slides available on SlideShare); I also finalized a Working Paper focused on this second theme.

During 2017, CIPIL’s new Information Governance Research Associate Krzysztof Garstka and I also began working on the development of a more global perspective to these concerns as part of the Human Rights, Big Data and Technology (HRBDT), which is funded by the ESRC.  Our sub-project focuses on what relevance (if any) the discourse around the so-called Right to be Forgotten (RtbF) has in an extra-European transnational context.   We are specifically examining the great variety of transnational instruments which have now grown up (including those finalised recently by both ECOWAS and the African Union), as well as statutory, jurisprudential and regulatory developments in select jurisdictions especially within the G20.  With 120 jurisdictions now having adopted some form of data protection law and the G20 itself taking an increasing interest in internet regulation, we think there is a strong potential to contribute to global policy and legal thinking in this area. 

Also in 2017, CIPIL was proud to host Jef Ausloos from the KU Leuven Centre for IT and IP Law as a Research Visitor for four months (January – April).   Jef’s work is exploring in detail the meaning and impact of the RtbF in an EU context and, more especially, how different fundamental rights and interests should be balanced in this context.  In February 2017 he gave a fascinating presentation to CIPIL tracing the origins and rationale of the RtbF in EU law, its overlap with the right of erasure, its scope of application, what elements by default trigger its application and finally what exceptions may apply here.  This prompted a wide-ranging audience debate on the merits of the RtbF in an evolving information society including potential synergies and also tensions with developments in the area of Intellectual Property (IP) – CIPIL’s other core area of work.

These potential linkages relate especially to work being undertaken by Christina Angelopoulos, CIPIL’s new lecturer in IP law, on the relationship between intermediary liability and copyright.  In November 2016, Christina’s book European Intermediary Liability in Copyright:  A Tort-Based Analysis was published by Kluwer and in March 2017 her study for MEP Julia Reda entitled On Online Platforms Platforms and the Commission’s New Proposal for a Directive on Copyright in the Digital Single Market was finalized.

With so many legal and policy developments underway in this general field, it is hoped that 2017-18 will provide plenty of opportunity for CIPIL to further deepen its work on intermediary and citizen publication, not only in codified data protection but also in other areas of information and intellectual property law.