Keynote Speakers

“Delete –The Virtue of Forgetting in the Digital Age” – Professor Viktor Mayer- Schönberger, University of Oxford

All through the analog age, for humans it has been easy to forget, and hard to remember. In the digital age, the situation has reversed: today the default is to store and remember; forgetting has become the exception. This has profound consequences for individuals and society, from how (informational) power is allocated to whether and how we retain our capacity to act in time. In this talk I analyze these consequences as well as possible solutions – legal and technical – to address the challenge posed by comprehensive digital memory.

“Searching for Vonnegut’s Narrator: Freedom, Identity and Privacy in the Information Society” – Professor Andrew Murray, London School of Economics

Kurt Vonnegut’s 1973 Novel “Breakfast of Champions” divides opinion sharply. Even Vonnegut himself only gave it a C+ in his self-evaluation collected in “Palm Sunday”, yet its themes of identity, consumerism, cultural homogeneity and freedom of choice resonate with a wider audience. Today these themes are more pertinent than ever.  How does  one construct their identity when control over the very information that forms the root of cultural and personal identity is in the hands of others? What happens when the digital and physical worlds collide through the Internet of Things and separate identities are merged for all to see? How does one form their own identity when information and cultural references are controlled b a very few media companies?

This paper will look at these, and other issues by asking whether the law is sufficiently well established and developed in the fields of data and personal privacy to protect one’s personal sphere sufficiently well to allow for the development of a self-determined identity. It will look at data protection, the right to privacy and the development of data gathering, storing and mining techniques. In particular it will question whether the Internet of Things is sufficiently well regulated to ensure individual management of identity. They key character in all this is Philboyd Studge, Kurt Vonnegut’s narrator/alter ego who controls all the characters in his book and yet can allow them freedom of will. This is a choice that digital media corporations and data controllers may have to make in the near future: do we treat people as people or do we treat them as (fixed) nodes? And more pertinently for us – what should be the response of the law to this?

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Invited Speakers

“UK Counter Terrorism Policy, Student Radicalization and the Internet” – Professor Ian Cram, University of Leeds

Official concerns about terrorists’ use of mass communications systems to radicalize potential supporters and recruit new members predate the Internet. The infamous broadcasting ban that Mrs Thatcher’s Government applied to the mainstream UK broadcasters in the late 1980’s was expressly designed to ‘deny the oxygen of publicity’ to the IRA and it supporters was upheld by the House of Lords  as a reasonable restriction on broadcasters’ freedom of expression. Fast-forward twenty years and the current concerns expressed in CONTEST – the Coalition Government’s counter terrorism strategy – centre upon preventing the radicalisation of young muslims via the internet. In the higher education sector, these concerns are reflected in guidance from the Dept of Business, Innovation & Skills (BIS).  ‘Inappropriate Student use of the Internet’ is one of the problem scenarios set out in their policy document Promoting good campus relations, fostering shared values and preventing violent extremism in Universities and Higher Education Colleges (BIS, 2008). Lord Carlile of Berriew – the Coalition Government’s Independent Reviewer of Counterterrorism law and Policy – has accused universities of being ‘slow or even reluctant to recognise their full responsibilities’ in the face of ‘unambiguous evidence’ of radicalising activities. Thus UK universities are being urged to monitor more closely the activities of students – including the use of computing facilities.  This paper looks at some of the problematic human rights issues which such surveillance raises.

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“Intellectual Property versus Innovation” – James Firth, CEO Open DIgital Policy Organisation

In our scramble to protect creators it’s all too easy to lose sight of the fact that copyright is a market intervention, and there comes a point where protecting the rights of the creator comes at a cost to consumers and society.  James Firth examines how digital technology threatens to push some concepts of IP protection to breaking point.
He suggests that copyright over-reach especially has focused on protecting the publishing industry at the expense of public interest; pointing to market monopolies strangling newer, innovative businesses and threatening online freedom.

But he believes some form of IP protection must survive to ensure investment in innovation and creation, balancing the needs of the publisher, author and public. He considers the special case of the software industry, where the number of distinct constituent “packages” in common software products regularly exceeds a thousand, how the number of patentable “inventions” in jurisdictions allowing software patents can far exceed this count, and how neither copyright protection nor patent protection seem particularly suitable for protecting such works.

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“I Can Stalk You”: Stalking the Stranger in Web 2.0 – Dr Subhajit Basu, University of Leeds

‘When you’re growing up your parents tell you not to talk to strangers, but the whole point of the Internet is to talk to strangers.’

The new social technologies have altered the underlying architecture of social interaction and information distribution. The explosion of Web 2.0 Social software platforms such as “Facebook”, “Bebo”, “MySpace” and “geolocative” social networking tools like “Foursquare” has resulted in commoditization of social relations. On the one hand people are encouraged to post their personal profiles, interests, photos, videos and online diaries with their thoughts and desires that they would otherwise keep secret, on the other hand by providing insight into their life, sometimes to absolute strangers, the possibility of becoming a victim of cyberstalking has also increased. In a way the social networking websites have the ability to promote deviant behaviour that might have remained simply the distorted musings of an imaginative mind! The question is how do we regulate such behaviour? (The title of this presentation is based on the website: “icanstalku”. The website raises awareness about inadvertent information sharing.)

“What’s the citizen’s interest in neutral networks? Network neutrality policy in the UK” – Dr Giles Moss, University of Leeds

Many countries are currently in the process of upgrading their communications infrastructure and networks. As they do so, one of the central questions they face is the issue of ‘network neutrality’: should network providers treat all content on their networks equally or should they be allowed to discriminate among different uses on commercial grounds. This paper evaluates policy response to network neutrality in the UK and considers the broader implications for media and communications policy. It argues that the current narrow emphasis on market competition and consumer sovereignty fails to address adequately the significant concerns and public values that are at stake in debates over net neutrality. The paper concludes by considering the citizen’s interest in neutral networks and suggests that network neutrality should be viewed as an important communicative entitlement to be secured in future networks.

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“Campaigning for Online Privacy: The Quest for a Coherent Public Response to Digital Privacy Threats” – Jim Killock, Executive Director for the Open Rights Group  – London

Jim Killock from the Open Rights Group looks at the threats to privacy posed by governments, corporations and inadequate regulation. Looking at ORG and other campaigners work covering examples such as Data Retention, ID Cards, Phorm and Intercept Modernisation, and the regulations and policy drivers behind each of these, we can see a pattern of negligence and devaluing privacy in the face of supposed government and corporate self interest: yet ultimately constitutional, political and ethical considerations can trump narrow concerns. The challenge for campaigners is creating a coherent policy response that gains traction within governments and bureaucracies, rather than the instincts of the public.

Panel Participants

“Internet Access as a Human Right: What Does it Exactly Mean?” – Professor Paul de Hert & Dariusz Kloza  (Vrije Universiteit Brussel)

The recent (May 2011) UN Human Rights Council‘s report on the promotion and protection of the right to freedom of opinion and expression has heated the worldwide debate on the Internet access as human right. Having underlined the role of the Internet in exercising these rights, the Special Rapporteur, Frank La Rue, wrote: “ensuring universal access to the Internet should be a priority for all States” (§85). The report also acknowledges its two dimensions: (1) access to the content, and (2) access to the physical and technical infrastructure required to access the Internet. A few countries already have undertaken some steps in ensuring the universal Internet access. Some jurisdictions consider the Internet access as a universal service. This is a case for Estonia (Art. Art. 5(2) of Telecommunications Act of 2000), Finland (Sec. 60(C), Communications Market Act of 2003) and Spain (Art. 52, Sustainable Economy Act of 2011). Moreover, both Finland and Spain have set the minimum rate of a functional Internet access as a universal service at 1 Mbit/s. However, a number of countries have given some kind of constitutional protection to the Internet access. In 2001, the Greek constitution has been amended to add a provision stating that “all persons have the right to participate in the Information Society” (Art. 5a(2)). In June 2009, the French Constitutional Council declared access to the Internet to be a basic human right by stating that freedom of expression “implies freedom to access” public on-­‐linecommunication services (§ 12, Decision No. 2009-­‐580). The Constitutional Court of Costa Rica is reported to have reached a similar verdict in 2010(§5, Decision No. 09-­‐013141-­‐0007-­‐CO). These developments are much in line with the public opinion. A March 2010 survey for BBC suggested that almost four in five people around the world believe that access to the Internet is a fundamental right. But nowadays the debate on the Internet access as a human right meets the discussion on the net neutrality, graduated response (“three strikes”), privacy concerns or blocking certain types of content, among others. It is now clearly seen that these legal bases vary considerably. In this paper, we would like to comparatively analyse: (1) how these countries ensure the universal access to the Internet, (2) why they do so, (3) whether the Internet access constitutes a right, and if so, (4) how such a right is protected, and (5) whether any limitations are possible.

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“From Competition to Freedom of Expression: Introducing the ECHR in the European Network Neutrality Debate” – Jasper Sluijs, Tilburg University (TILEC)

The present article stresses the relevance of freedom of expression according to art. 10 ECHR in the European network neutrality debate, which has been overlooked both in telecommunications policymaking and research in Europe. Since the liberalization process of the 1980s the European regulation of telecommunications has increasingly become grounded in law and economics. Under the current regulatory framework, therefore, telecommunications services are subject to generic competition law by default, while any sector-specific regulation is dependent on the existence of so-called ‘significant market power’ of firms. European telecommunications law has come under popular attention with the emergence of the network neutrality debate, which concerns ownership and control on the Internet. The debate concentrates on the role of Internet Service Providers (ISPs) as a potential gate keeper for Internet access of end-users and online content providers. In line with standard practice in European telecommunications policy the European institutions have framed their response to the issue of network neutrality mainly in economic terms, arguing that competition between ISPs should mitigate network neutrality concerns. At the same time, European civil society organizations have attempted to frame network neutrality in terms of fundamental rights, particularly freedom of expression. Under this rationale gate keeping ISPs would have a chilling effect on free speech. This plead for a fundamental rights approach to network neutrality has found some resonance in EU policymaking, and is now referenced more explicitly in the European regulatory framework for electronic communications. However, while a small but significant literature has developed on how network neutrality relates to fundamental rights in the US, there is little, if any, substantial legal research on whether and to what extent European fundamental rights law has an effect on the network neutrality debate. This article relates network neutrality to the rich body of freedom of expression case law according to the ECHR, and asks to what extent this jurisprudence is of relevance for network neutrality discussions. The findings of this research demonstrate potential problems concerning private enforcement of ECHR law when interpreting network neutrality through freedom of expression law, and reveal unintended consequences of the Strasbourg Court’s approach to commercial expression. This underscores the continued relevance of the Convention in complex technological debates and  present telecommunications policy. Moreover, this article focuses on how network neutrality sheds new light on a number of ongoing doctrinal debates in ECHR scholarship, such as positive obligations and the margin of appreciation of National courts concerning commercial expression.

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“The Human Rights Significance of Search Engine Rankings” – Emily Laidlaw, University of East Anglia/ LSE

There are approximately 348 million websites available on the Internet.  Search engines sort through the mess and select the information to bring to our attention.  In so doing, they determine the information on the Internet that is visible.  Thus it is not surprising that the most viewed websites on the Internet tend to be search engines.  As a result, they are macro-gatekeepers in the online environment, because by controlling what does and does not appear on search results and how high on the results they appear they control participation in discourse online.  While the fact that search engines impact freedom of expression is clear from the outset, the exact nature of this impact and what this then means concerning their legal responsibilities is more problematic when examined against the backdrop of traditional human rights laws.  The issue comes down to one of characterization: are search results simply the search engine’s marketing tool – their private forum for speech? Or are search engines critical communication tools for making any sensible use of the Internet?

At the moment, there are few legal and normative frameworks that regulate the free speech impact of search engine rankings.  The result is that search results are effectively removed from free speech scrutiny.  This paper will examine the regulatory lacuna in which they operate and show that the tripping point in attempting to craft laws to apply to search results is in defining what speech and whose speech we are talking.  The potential rights engaged under traditional approaches to free speech are the right of the users to receive information, the rights of content providers to be listed on the rankings, and the rights of the search providers to publicly air their opinions on the importance of websites.  This paper will examine the limitations of these approaches and show the need for a sui generis treatment of search engines, arguing that the free speech right engaged by search engines is accessibility of information.  The responsibility that should flow from this, it will be shown, is management of the forum in a fair, open and proportionate manner.

“A Right to an Online Identity?” – Paul Bernal, University of East Anglia/ LSE

This paper will address the proposition that if people have a right to internet access then that they should have a right to an online identity. If online life is now an intrinsic component of modern life, then to function fully in modern life an individual needs to be able to assert an online identity, as a recognised online identity is already important for much of what happens online. There are times and places both offline and online when the assertion (and certification) of identity can be required, and others where it can be of significant help – where finance is concerned, for example, or when dealing with e-Government. In the real world, the right to identity has already begun to take legal forms. The United Nations Convention of the Rights of the Child includes a right to identity while the European Court of Human Rights appears to have derived such a right from Article 8 of the ECHR. This leads to the suggestion of a right to an online identity. This would include the rights to create, assert and protect that identity – and to control the links between the online identity and the real identity behind it. There are close connections between privacy and identity: key aspects of privacy can be viewed as protection of identity. Viewing online privacy from the perspective of a right to an online identity can suggest ways forward in establishing a more privacy-friendly internet for the future. Further to this, the proposed ‘right to be forgotten’ can also be seen as following directly from a right to an online identity – protecting and controlling an online identity would include rights over the data associated with that online identity. Another key aspect considered in the paper is the question of anonymity. Anonymity can be seen as a converse to identity – an absence of identity – and just as there are times and places where identity is required, there may be times and places where anonymity is required and should be guaranteed: a limited ‘right to anonymity’ in certain circumstances. Surrounding the idea of a right to identity are complications such as multiple online identities, shared online identities and pseudonymity. These make the establishment of a right to an online identity complex, but emphasise the importance of giving it proper consideration

“The Dehumanisation of Law: Online Reflections” – Nicholas Gervassis, University of Edinburgh

This paper claims that the applied legal frameworks, particularly in relation to our online existences, have gradually professed the withering of the human rights grammar.  The observed trend does not necessarilyconfer intent, yet it neither marks coincidental development. The general tendency finds other global discourses on the rise (i.e. intellectual property and security risk), and systemic preoccupations with various forms of proceduralism undercutting the historically and structurally preceding spilling over of human rights across law. The needs of the market set targets for the regulation of the Internet with a seeming exclusivity over matters of social conduct.  If we are to discuss how contractual tools, the likes of Terms of Service and EULAs, lock authoritatively the development of citizenship within privatised regimes, we need to review those mechanisms that made possible for values and principles, which define the liberal constitutional democracy, to be so aggressively resisted and denied of their role in legal practice. The paper looks critically into the genealogy of Internet laws, which made almost reasonable to ostracise the human being from human laws.

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“Old and new rights in the digital world. A glance at freedom of expression, data protection and digital identity” – Angela Daly & Shara Monteleone (European University Institute)

Globalization and the development of information technologies promise to increase the quality of human communications and to foster general economic growth. What is, however, the impact of this digital evolution on traditional rights, such as freedom of expression and on ‘new’ rights, such as data protection and digital identity? The aim of this paper is to identify the main challenges and risks that these rights have to face within a global digital environment and, in the meantime, highlight the opportunities that HR protection could receive from digital technologies, if they are properly deployed. This contribution will consider as case-studies some significant ‘digital events’ of the web.2.0 era, namely the Huffington Post/AOL merger and the recent developments in the functionality of Social Networking sites (SNS) (e.g. Facebook’s default settings or its launch of new facial recognition system): they will be used as starting points for a wider discussion on the evolution of freedom of expression and data protection rights in the online world. The first case illustrates also the various possibilities offered by digital technologies to enhance democratic values (pluralism, participation, freedom of information, as also exemplified by the recent events surrounding the North African dissidents), but also the risks posed to these values when other interests (of an economic and political nature) prevail. To which extent the new Internet platforms offer true interaction, true freedom of choice, true pluralism? The AOL Huffington Post example will be used in particular to show the increasing economic consolidation on the Internet and the effects this may have for competition and pluralism of thought and opinion on the medium, related as well to freedom of expression. In addition, the specific implications of this merger on blogs and blogging will be examined, which will take into account issues of ownership and control of blogged material by individual authors, a subject which will be related more generally to online data processing by individuals for private purposes. The fact of many of the actors involved in these kinds of issues are private bodies (corporations etc) will also be explored, and the challenges of this elaborated, especially since the legal and constitutional protection of HRs is generally oriented to infringements by public actors. The paper will reflect on the adequacy of such a framing of HR protection given the issues in this area produced in the online context. Moreover, the SNS example will offer the occasion for a) a reflection on the users’ online attitudes concerning identity management and data protection (taking into account the results of the recent Eurobarometer 359 “The state of the e-Identity and Data Protection in Europe”) and for b) a consideration on the increasing use of smart, networked technologies in the digital environment (often relying on human physical/behavioral attributes) that strain one of the main data protection requirements, the consent (Art 29 WP recently adopted an Opinion on the related definition). After a brief overview of these cases, the focus will be on the available legal instruments to cope with them. It will be argued that legal measures of hard and soft law, at international or regional level, could be helpful and effective only if able to combine a sufficient degree of flexibility – necessary to adapt to the new technologies and new generation of users – with a level of rigidity necessary to ensure the rights protection against the opposite strengths acting in the digital word. This is likely one of the challenges that the new data protection framework, announced by the European Commission, has to face.

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“The Rights of Notification after Surveillance is Over: Ready for Recognition?” – Professor Paul de Hert  (VUB) & Franziska Boehm (Université du Luxembourg

The notification of individuals of surveillance measures is a crucial issue currently discussed in several Member States. Provisions so far enacted in this area reflect a certain ambiguity in the regulation of this matter. As a consequence, the right to be informed of the fact that online malware installation have been set up on the computer, that the telephone has been tapped or that a person has been subject to (secret) visual and/or video surveillance measures are not harmonised in the EU. While some Member States follow a quite transparent approach, others are more reluctant. The developments in the Member States, however, show a general tendency towards the establishment of a right to be informed. In Germany, for instance, public authorities are required to notify subjects in most of cases after the termination of surveillance activities. Belgium has recently introduced in its law on secret service powers an obligation to inform individuals after surveillance measures have taken place. In contrast, the Netherlands plan to abandon their information duty, due to the impracticability reasons. Discussions in the Member States are reflected at European level as well. Recent case-law of the European Court of Human Rights in respect to the purpose and necessity of secret surveillance measures, links the right of notification to the effectiveness of remedies before the courts and consequently to the existence of effective safeguards against the abuse of monitoring powers. Nonetheless, the Court’s position is not perfectly clear. Although it seems to be in favour of a notification duty, it hesitates to establish a general obligation. The paper discusses the relevant case-law at the national and EU level. It refers to the ongoing discussions in Belgium and the Netherlands and analyses the jurisprudence of the European Court of Human Rights in this area. Questions such as the acceptance of a right of notification after surveillance is terminated and the possible recognition of this right are being tackled.

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