@article{nokey,

title = {Defining the ‘media’ in Europe: pitfalls of the proposed European Media Freedom Act},

author = {Seipp, T. and Fahy, R. and Drunen, M. van},

doi = {10.1080/17577632.2023.2240998},

year  = {2023},

date = {2023-07-31},

journal = {Journal of Media Law},

abstract = {This comment examines the definition of ‘media’ under the recently-proposed European Media Freedom Act (EMFA), and highlights its potential flaws, while pointing to possible considerations for future improvement. Notably, the narrow service-based approach to defining ‘media’ under Article 2 EMFA appears to be in conflict with the functional approach to defining media under European and international human rights law. Additionally, a lack of transparency and safeguards regarding how the criteria of ‘editorial independence’ is to be assessed, especially under Article 17 EMFA, is problematic. The risk that such decisions are made based on commercial and/or political considerations rather than established standards of media freedom must be avoided, especially when platforms are to assess editorial independence.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Beyond financial regulation of crypto-asset wallet software: In search of secondary liability},

author = {Barbereau, T. and Bod\'{o}, B.},

url = {https://www.sciencedirect.com/science/article/pii/S0267364923000390},

doi = {10.1016/j.clsr.2023.105829},

year  = {2023},

date = {2023-06-22},

urldate = {2023-06-22},

journal = {Computer Law \& Security Review},

volume = {49},

number = {105829},

abstract = {Since Bitcoin, the blockchain space considerably evolved. One crucial piece of software to interact with blockchains and hold private-public key pairs to distinct crypto-assets and securities are wallets. Wallet software can be offered by liable third-parties (‘custodians’) who hold certain rights over assets and transactions. As parties subject to financial regulation, they are to uphold Anti-money Laundering and Combating the Financing of Terrorist (AML/CFT) standards by undertaking Know-Your-Customer (KYC) checks on users of their services.

In juxtaposition, wallet software can also be issued without the involvement of a liable third-party. As no KYC is performed and users have full ‘freedom to act’, such ‘non-custodial’ wallet software is popular in criminal undertakings. They are required to interact with peer-to-peer applications and organisations running on blockchains whose benefits are not the subject of this paper. To date, financial regulation fails to adequately address such wallet software because it presumes the existence of a registered, liable entity offering said software. As illustrated in the case of Tornado Cash, financial regulation fails to trace chains of secondary liability. Alas, the considered solution is a systematic surveillance of all transactions.

Against this backdrop, this paper sets forth an alternative approach rooted in copyright law. Concepts that pertain to secondary liability prove of value to develop a flexible, principles-based approach to the regulation of non-custodial wallet software that accounts for both, infringing and non-infringing uses.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {The right to encryption: Privacy as preventing unlawful access},

author = {van Daalen, O.},

url = {https://www.sciencedirect.com/science/article/pii/S0267364923000146},

doi = {10.1016/j.clsr.2023.105804},

year  = {2023},

date = {2023-05-23},

journal = {Computer Law \& Security Review},

volume = {49},

abstract = {Encryption technologies are a fundamental building block of modern digital infrastructure, but plans to curb these technologies continue to spring up. Even in the European Union, where their application is by now firmly embedded in legislation, lawmakers are again calling for measures which would impact these technologies. One of the most important arguments in this debate are human rights, most notably the rights to privacy and to freedom of expression. And although some authors have in the past explored how encryption technologies support human rights, this connection is not yet firmly grounded in an analysis of European human rights case law. This contribution aims to fill this gap, developing a framework for assessing restrictions of encryption technologies under the rights to privacy and freedom of expression as protected under the European Convention of Human Rights (the Convention) and the Charter of Fundamental rights in the European Union (the Charter). In the first section, the relevant function of encryption technologies, restricting access to information (called confidentiality), is discussed. In the second section, an overview of some governmental policies and practices impacting these technologies is provided. This continues with a discussion of the case law on the rights to privacy, data protection and freedom of expression, arguing that these rights are not only about ensuring lawful access by governments to protected information, but also about preventing unlawful access by others. And because encryption technologies are an important technology to reduce the risk of this unlawful access, it is then proposed that this risk is central to the assessment of governance measures in the field of encryption technologies. The article concludes by recommending that states perform an in-depth assessement of this when proposing new measures, and that courts when reviewing them also place the risk of unlawful access central to the analysis of interference and proportionality.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Outsourcing Human Rights Obligations and Concealing Human Rights Deficits: The Example of Monetizing User-Generated Content Under the CDSM Directive and the Digital Services Act},

author = {Senftleben, M. and Quintais, J. and Meiring, A.},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4421150},

year  = {2023},

date = {2023-04-26},

abstract = {With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same \textendash highly problematic \textendash approach.



Against this background, the paper discusses the weakening \textendash and potential loss \textendash of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Export control of cybersurveillance items in the new dual-use regulation: The challenges of applying human rights logic to export control},

author = {van Daalen, O. and van Hoboken, J. and Rucz, M.},

doi = {10.1016/j.clsr.2022.105789},

year  = {2023},

date = {2023-04-21},

journal = {Computer Law \& Security Review},

volume = {48},

abstract = {In 2021, the Recast Dual-Use Regulation entered into force. The regulation includes a heavily debated new provision on the export control of so-called cybersurveillance items. This provision departs from the traditional logic of export control rules in multiple ways. Most importantly, it positions human rights considerations as an important factor in the export control of a flexible range of technologies. This article explores the operation, implications and challenges of this new human rights-orientated approach to export control of digital surveillance technologies. Taking the definition of cybersurveillance items as a starting point of the analysis, the article draws on surveillance-related case law of the European Court of Human Rights and the Court of Justice of the European Union, to define the potential scope of application of the open-ended cybersurveillance concept of the Regulation. By exploring how this concept maps to technologies often connected with human rights infringements, such as facial recognition, location tracking and open-source intelligence, the article highlights the challenges of applying this new approach and underscores the need for its further development in practice.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Algorithmic propagation: do property rights in data increase bias in content moderation? Part I},

author = {Margoni, T. and Quintais, J. and Schwemer, S.},

url = {http://copyrightblog.kluweriplaw.com/2022/06/08/algorithmic-propagation-do-property-rights-in-data-increase-bias-in-content-moderation-part-i/},

year  = {2022},

date = {2022-06-08},

journal = {Kluwer Copyright Blog},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Microtargeted propaganda by foreign actors: An interdisciplinary exploration},

author = {Fahy, R. and Dobber, T. and Zuiderveen Borgesius, F. and Shires, J.},

url = {https://www.ivir.nl/publicaties/download/MaastrichtJournalofEuropeanandComparativeLaw_2021_6.pdf},

doi = {10.1177/1023263X211042471},

year  = {2022},

date = {2022-01-25},

urldate = {2021-12-31},

journal = {Maastricht Journal of European and Comparative Law},

pages = {856-877},

abstract = {This article discusses a problem that has received scant attention in literature: microtargeted propaganda by foreign actors. Microtargeting involves collecting information about people, and using that information to show them targeted political advertisements. Such microtargeting enables advertisers to target ads to specific groups of people, for instance people who visit certain websites, forums, or Facebook groups. This article focuses on one type of microtargeting: microtargeting by foreign actors. For example, Russia has targeted certain groups in the US with ads, aiming to sow discord. Foreign actors could also try to influence European elections, for instance by advertising in favour of a certain political party. Foreign propaganda possibilities existed before microtargeting. This article explores two questions. In what ways, if any, is microtargeted propaganda by foreign actors different from other foreign propaganda? What could lawmakers in Europe do to mitigate the risks of microtargeted propaganda?},

note = {MJ, vol. 28, nr. 6, 2021},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Social Welfare, Risk Profiling and Fundamental Rights: The Case of SyRI in the Netherlands},

author = {Appelman, N. and Fahy, R. and van Hoboken, J.},

url = {https://www.ivir.nl/publicaties/download/jipitec_2021_4.pdf

https://www.jipitec.eu/issues/jipitec-12-4-2021/5407},

year  = {2021},

date = {2021-12-16},

journal = {JIPITEC},

volume = {12},

number = {4},

pages = {257-271},

abstract = {This article discusses the use of automated decisioning-making (ADM) systems by public administrative bodies, particularly systems designed to combat social-welfare fraud, from a European fundamental rights law perspective. The article begins by outlining the emerging fundamental rights issues in relation to ADM systems used by public administrative bodies. Building upon this, the article critically analyses a recent landmark judgment from the Netherlands and uses this as a case study for discussion of the application of fundamental rights law to ADM systems by public authorities more generally. In the so-called SyRI judgment, the District Court of The Hague held that a controversial automated welfare-fraud detection system (SyRI), which allows the linking and analysing of data from an array of government agencies to generate fraud-risk reports on people, violated the right to private life, guaranteed under Article 8 of the European Convention on Human Rights (ECHR). The Court held that SyRI was insufficiently transparent, and contained insufficient safeguards, to protect the right to privacy, in violation of Article 8 ECHR. This was one of the first times an ADM system being used by welfare authorities has been halted on the basis of Article 8 ECHR. The article critically analyses the SyRI judgment from a fundamental rights perspective, including by examining how the Court brought principles contained in the General Data Protection Regulation within the rubric of Article 8 ECHR as well as the importance the Court attaches to the principle of transparency under Article 8 ECHR. Finally, the article discusses how the Dutch government responded to the judgment. and discusses proposed new legislation, which is arguably more invasive, with the article concluding with some lessons that can be drawn for the broader policy and legal debate on ADM systems used by public authorities. implications.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Irion2021e,

title = {Governing “European values” inside data flows: : interdisciplinary perspectives},

author = {Irion, K. and Kolk, A. and Buri, M. and Milan, S.},

url = {https://policyreview.info/european-values},

doi = {10.14763/2021.3.1582},

year  = {2021},

date = {2021-10-11},

urldate = {2021-10-11},

journal = {Internet Policy Review},

volume = {10},

number = {3},

abstract = {This editorial introduces ten research articles, which form part of this special issue, exploring the governance of “European values” inside data flows. Protecting fundamental human rights and critical public interests that undergird European societies in a global digital ecosystem poses complex challenges, especially because the United States and China are leading in novel technologies. We envision a research agenda calling upon different disciplines to further identify and understand European values that can adequately perform under conditions of transnational data flows.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Helberger2021bb,

title = {Towards Unfair Political Practices Law: Learning lessons from the regulation of unfair commercial practices for online political advertising},

author = {Helberger, N. and Dobber, T. and Vreese, C.H. de},

url = {https://www.jipitec.eu/issues/jipitec-12-3-2021/5338},

year  = {2021},

date = {2021-08-26},

journal = {JIPITEC},

volume = {12},

number = {3},

pages = {273-296},

abstract = {Online political advertising operates in a tense forcefield between political and commercial elements and thus presents regulators with a difficult conundrum: because online political advertising is political rather than commercial speech, it is destined to follow a different regulatory tradition than commercial advertising. And yet many of the tools used, players involved and concerns triggered by modern online political advertising strategies very much resemble the tools, players and concerns in online commercial targeting. Commercial advertising is subject to consumer law and unfair advertising regulation, including rules about unfair commercial practices. Unfair commercial practices law and other rules about commercial advertising, however, are explicitly not applicable to forms of non-commercial political or ideological advertising. An important reason why this is so is the different level of protection of political and commercial speech under fundamental rights law standards. And yet with the ongoing commercial turn in advertising, the traditional division between forms of commercial and political advertising is no longer that self-evident. Also, it cannot be denied that commercial advertising law has a long tradition of thinking of where and how to draw the line between lawful advertising and unlawful persuasion through withholding or misleading consumers about the information they need to take informed decisions, or abusing superior knowledge, exerting undue psychological pressure and engaging in other forms of unfair behaviour. The question this article explores is whether there are lessons to be learned from the regulation of commercial advertising for the pending initiatives at the national and the European level to regulate online political advertising, and online political targeting in specific.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{vanEechoud2021bb,

title = {Please share nicely \textemdash From Database directive to Data (governance) acts},

author = {van Eechoud, M.},

url = {http://copyrightblog.kluweriplaw.com/2021/08/18/please-share-nicely-from-database-directive-to-data-governance-acts/},

year  = {2021},

date = {2021-08-24},

journal = {Kluwer Copyright Blog},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{vanHoboken2021b,

title = {Smartphone platforms as privacy regulators},

author = {van Hoboken, J. and Fahy, R.},

url = {https://www.ivir.nl/publicaties/download/Smartphone-platforms-as-privacy-regulators.pdf},

doi = {https://doi.org/10.1016/j.clsr.2021.105557},

year  = {2021},

date = {2021-06-10},

journal = {Computer Law \& Security Review},

volume = {41},

abstract = {A series of recent developments highlight the increasingly important role of online platforms in impacting data privacy in today's digital economy. Revelations and parliamentary hearings about privacy violations in Facebook's app and service partner ecosystem, EU Court of Justice judgments on joint responsibility of platforms and platform users, and the rise of smartphone app ecosystems where app behaviour is governed by app distribution platforms and operating systems, all show that platform policies can make or break the enjoyment of privacy by users. In this article, we examine these developments and explore the question of what can and should be the role of platforms in protecting data privacy of their users.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{vanHoboken2021,

title = {Regulating Disinformation in Europe: Implications for Speech and Privacy},

author = {van Hoboken, J. and Fahy, R.},

url = {https://www.ivir.nl/publicaties/download/Regulating-Disinformation-in-Europe.pdf},

year  = {2021},

date = {2021-06-01},

journal = {UC Irvine Journal of International, Transnational, and Comparative Law},

volume = {6},

number = {1},

pages = {9-36},

abstract = {This Article examines the ongoing dynamics in the regulation of disinformation in Europe, focusing on the intersection between the right to

freedom of expression and the right to privacy. Importantly, there has been a recent wave of regulatory measures and other forms of pressure on online platforms to tackle disinformation in Europe. These measures play out in different ways at the intersection of the right to freedom of expression and the right to privacy. Crucially, as governments, journalists, and researchers seek greater transparency and access to information from online platforms to evaluate their impact on the health of their democracies, these measures raise acute issues related to user privacy. Indeed, platforms that once refused to cooperate with governments in identifying users allegedly responsible for disseminating illegal or harmful content are now expanding cooperation. However, while platforms are increasingly facilitating government access to user data, platforms are also invoking data protection law concerns as a shield in response to recent efforts at increased platform transparency. At

the same time, data protection law provides for one of the main systemic regulatory safeguards in Europe. It protects user autonomy concerning datadriven campaigns, requiring transparency for internet audiences about targeting and data subject rights in relation to audience platforms, such as social media companies.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Opinie: Het geheim van de ministerraad},

author = {Hins, A.},

url = {https://www.ivir.nl/publicaties/download/Opinie_Mediaforum_2021_3.pdf},

year  = {2021},

date = {2021-03-01},

journal = {Mediaforum},

volume = {33},

number = {3},

pages = {97},

abstract = {Opinie naar aanleiding van het openbaar maken op 26 april 2021 van de notulen van de ministerraad inzake de problemen rond de kinderopvangtoeslag. },

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Helberger2021b,

title = {Regulation of news recommenders in the Digital Services Act: empowering David against the Very Large Online Goliath},

author = {Helberger, N. and Drunen, M. van and Vrijenhoek, S. and M\"{o}ller, J.},

url = {https://policyreview.info/articles/news/regulation-news-recommenders-digital-services-act-empowering-david-against-very-large},

year  = {2021},

date = {2021-02-26},

journal = {Internet Policy Review},

note = {Opinion},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {In Memoriam Jan de Meij 1938-2020},

author = {Hins, A.},

url = {https://www.ivir.nl/publicaties/download/TvCR-2021_2-In-Memoriam-Jan-de-Meij.pdf},

year  = {2021},

date = {2021-02-02},

journal = {Tijdschrift voor Constitutioneel Recht},

volume = {12},

number = {2},

pages = {94-96},

abstract = {Terugblik op het leven van prof. J.M. de Meij, hoogleraar staats- en bestuursrecht aan de UvA, die overleed op 31 december 2020.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Yakovleva2020c,

title = {Kaleidoscopic data-related enforcement in the digital age},

author = {Yakovleva, S. and Geursen, W. and Arnbak, A.},

url = {https://www.ivir.nl/publicaties/download/CMLR_2020.pdf},

year  = {2020},

date = {2020-10-01},

journal = {Common Market Law Review},

volume = {57},

number = {5},

pages = {1461-1494},

abstract = {The interplay between competition, consumer and data protection law, when applied to data collection and processing practices, may lead to situations where several competent authorities can, independently, carry out enforcement actions against the same practice, or where an authority competent to carry out enforcement in one area of law can borrow the concepts of another area to advance its own goals. The authors call this “kaleidoscopic enforcement”. Kaleidoscopic enforcement may undermine existing coordination mechanisms within specif ic areas, and may lead to both the incoherent enforcement of EU rules applicable to data, and to sub-optimal enforcement. An EU level binding

inter-disciplinary coordination mechanism between competition, consumer and data protection authorities is needed. Now the Commission has announced ambitious plans to enhance the coherent application of EU law in several areas, it is the perfect time to work towards creating such an enforcement mechanism.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Bod\'{o}2020b,

title = {Mediated trust: A theoretical framework to address the trustworthiness of technological trust mediators},

author = {Bod\'{o}, B.},

url = {https://journals.sagepub.com/doi/10.1177/1461444820939922},

doi = {10.1177/1461444820939922},

year  = {2020},

date = {2020-07-17},

journal = {New Media \& Society},

abstract = {This article considers the impact of digital technologies on the interpersonal and institutional logics of trust production. It introduces the new theoretical concept of technology-mediated trust to analyze the role of complex techno-social assemblages in trust production and distrust management. The first part of the article argues that globalization and digitalization have unleashed a crisis of trust, as traditional institutional and interpersonal logics are not attuned to deal with the risks introduced by the prevalence of digital technologies. In the second part, the article describes how digital intermediation has transformed the traditional logics of interpersonal and institutional trust formation and created new trust-mediating services. Finally, the article asks as follows: why should we trust these technological trust mediators? The conclusion is that at best, it is impossible to establish the trustworthiness of trust mediators, and that at worst, we have no reason to trust them.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Helberger2020d,

title = {The Political Power of Platforms: How Current Attempts to Regulate Misinformation Amplify Opinion Power},

author = {Helberger, N.},

url = {https://doi.org/10.1080/21670811.2020.1773888},

year  = {2020},

date = {2020-07-14},

journal = {Digital Journalism},

volume = {8},

number = {6},

pages = {842-854},

abstract = {This contribution critically reviews the ongoing policy initiatives in Europe to impose greater societal responsibility on social media platforms. I discuss the current regulatory approach of treating social platforms as mere 'intermediaries' of the speech of others and propose a different perspective. Instead of perceiving platforms as intermediaries and facilitators of the speech of others, I view social media platforms as active political actors in their own right, and wielders of considerable opinion power. I will explain how taking the perspective of opinion power throws a very different, and rather alarming light on the recent regulatory initiatives.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Yakovleva2020b,

title = {Drie mogelijke boetes van mededingings-, consumenten- en persoonsgegevensautoriteiten voor hetzelfde datagebruik},

author = {Yakovleva, S. and Geursen, W,W, and Arnbak, A.},

url = {https://www.ivir.nl/publicaties/download/MP_2020_164.pdf},

year  = {2020},

date = {2020-06-09},

journal = {Tijdschrift Mededingingsrecht in de Praktijk},

number = {2},

pages = {30-37},

abstract = {Door de toename van datagebruik door ondernemingen is er sprake van convergentie tussen het mededingings-, consumenten- en gegevensbeschermingsrecht. Er kan dan parallelle handhaving plaatsvinden ten aanzien van \'{e}\'{e}n en dezelfde handeling door dezelfde onderneming door drie verschillende autoriteiten. Dat noemen wij caleidoscopische handhaving. Dat heeft volgens ons verschillende keerzijden, waaronder het risico op overhandhaving door drie afzonderlijke procedures van drie afzonderlijke autoriteiten en mogelijk drie boetes. Wij onderzoeken in dit artikel waarom het ne-bis-in-idem-beginsel niet van toepassing is en het beginsel van eendaadse samenloop evenmin (net als in de recente Marine Harvest gun-jumping zaak), waardoor proportionaliteit overblijft.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Dommering2020d,

title = {Annotatie bij Hoge Raad 5 november 2019 en Hoge Raad 3 december 2019},

author = {Dommering, E.},

url = {https://www.ivir.nl/publicaties/download/Annotatie_NJ_20120_72.pdf},

year  = {2020},

date = {2020-03-03},

journal = {Nederlandse Jurisprudentie},

number = {10},

pages = {1368-1369},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Yakovleva2020,

title = {Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy},

author = {Yakovleva, S.},

url = {https://repository.law.miami.edu/umlr/vol74/iss2/5/},

year  = {2020},

date = {2020-02-27},

journal = {University of Miami Law Review},

volume = {74},

number = {2},

pages = {416-519},

abstract = {Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning but is socially constructed by the power of discourse used in international negotiations, and in the interpretation and application of international trade policy and rules. In other words, there are as many definitions of “(digital) protectionism” as there are discourses. The U.S. and E.U. “digital trade” discourses illustrate this point. Using the same term, those trading partners advance utterly different discourses and agendas: an economic discourse with economic efficiency as the main benchmark (United States), and a more multidisciplinary discourse where both economic efficiency and protection of fundamental rights are equally important (European Union). Second, based on a detailed evaluation of the economic “digital trade” discourse, the Article contends that the coining of the term “digital protectionism” to refer to domestic information governance policies not yet fully covered by trade law disciplines is not a logical step to respond to objectively changing circumstances, but rather a product of that discourse, which is coming to dominate U.S.-led international trade negotiations. The Article demonstrates how this redefinition of “protectionism” has already resulted in the adoption of international trade rules in recent trade agreements further restricting domestic autonomy to protect the rights to privacy and the protection of personal data. The Article suggests that the distinction between privacy and personal data protection and protectionism is a moral question, not a question of economic efficiency. Therefore, when a policy conversation, such as the one on cross-border data flows, involves noneconomic spill-over effects to individual rights, such conversation should not be confined within the straightjacket of trade economics, but rather placed in a broader normative perspective. Finally, the Article argues that, in conducting recently restarted multilateral negotiations on electronic commerce at the World Trade Organization, countries should rethink the goals of international trade for the twenty-first century. Such goals should determine and define the discourse, not the other way around. The discussion should not be about what “protectionism” means but about how far domestic regimes are willing to let trade rules interfere in their autonomy to protect their societal, cultural, and political values.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Dobber2020,

title = {The regulation of online political micro-targeting in Europe},

author = {Dobber, T. and Fahy, R. and Zuiderveen Borgesius, F.},

url = {https://policyreview.info/articles/analysis/regulation-online-political-micro-targeting-europe},

doi = {10.14763/2019.4.1440},

year  = {2020},

date = {2020-01-16},

journal = {Internet Policy Review},

volume = {8},

number = {4},

abstract = {In this paper, we examine how online political micro-targeting is regulated in Europe. While there are no specific rules on such micro-targeting, there are general rules that apply. We focus on three fields of law: data protection law, freedom of expression, and sector-specific rules for political advertising; for the latter we examine four countries. We argue that the rules in the General Data Protection Regulation (GDPR) are necessary, but not sufficient. We show that political advertising, including online political micro-targeting, is protected by the right to freedom of expression. That right is not absolute, however. From a European human rights perspective, it is possible for lawmakers to limit the possibilities for political advertising. Indeed, some countries ban TV advertising for political parties during elections.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Fahy2019eb,

title = {European Regulation of Smartphone Ecosystems},

author = {Fahy, R. and van Hoboken, J.},

url = {https://edpl.lexxion.eu/article/EDPL/2019/4/6},

doi = {https://doi.org/10.21552/edpl/2019/4/6},

year  = {2019},

date = {2019-12-13},

journal = {European Data Protection Law Review (EDPL)},

volume = {5},

number = {4},

pages = {476-491},

abstract = {For the first time, two pieces of EU legislation will specifically target smartphone ecosystems in relation to smartphone and mobile software (eg, iOS and Android) privacy, and use and monetisation of data. And yet, both pieces of legislation approach data use and data monetisation from radically contrasting perspectives. The first is the proposed ePrivacy Regulation, which seeks to provide enhanced protection against user data monitoring and tracking in smartphones, and safeguard privacy in electronic communications. On the other hand, the recently enacted Platform-to-Business Regulation 2019, seeks to bring fairness to platform-business user relations (including app stores and app developers), and is crucially built upon the premise that the ability to access and use data, including personal data, can enable important value creation in the online platform economy. This article discusses how these two Regulations will apply to smartphone ecosystems, especially relating to user and device privacy. The article analyses the potential tension points between the two sets of rules, which result from the underlying policy objectives of safeguarding privacy in electronic communications and the functioning of the digital economy in the emerging era of platform governance. The article concludes with a discussion on how to address these issues, at the intersection of privacy and competition in the digital platform economy.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Dommering2019h,

title = {Annotatie bij Hof van Justitie EU 24 september 2019 (Google / Frankrijk)},

author = {Dommering, E.},

url = {https://www.ivir.nl/publicaties/download/Annotatie_NJ_2019_434.pdf},

year  = {2019},

date = {2019-12-10},

journal = {Nederlandse Jurisprudentie},

number = {48/49},

pages = {7182-7185},

abstract = {Verantwoordelijkheid zoekmachine bij het produceren van zoekresultaat met gegevens over strafrechtelijke veroordeling.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Helberger2019,

title = {Germany proposes Europe's first diversity rules for social media platforms},

author = {Helberger, N. and Leerssen, P. and Drunen, M. van},

url = {https://blogs.lse.ac.uk/mediapolicyproject/2019/05/29/germany-proposes-europes-first-diversity-rules-for-social-media-platforms/},

year  = {2019},

date = {2019-06-06},

journal = {LSE Media Policy Project Blog},

volume = {2019},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Coche2019b,

title = {Heks'nkaas or the "Fifty Shades of Taste" Explained by the CJEU through EU Copyright Law},

author = {Coche, E.},

url = {http://uba-sfx.hosted.exlibrisgroup.com/uva-linker?url_ver=Z39.88-2004\&url_ctx_fmt=info:ofi/fmt:kev:mtx:ctx\&ctx_enc=info:ofi/enc:UTF-8\&ctx_ver=Z39.88-2004\&rfr_id=info:sid/sfxit.com:azlist\&sfx.ignore_date_threshold=1\&rft.object_id=110978977740233\&disable_directlink=true\&sfx.directlink=off;},

year  = {2019},

date = {2019-03-12},

journal = {European Intellectual Property Review},

volume = {2019},

number = {3},

pages = {173-180},

abstract = {If the CJEU were to grant a prize to the 2018 most "original" copyright dispute, Levola Hengola v Smilde Foods (C-310/17) (the Heks’nkaas case) would undoubtedly stand among the nominees. The main reason why this case hit the spotlight is most probably because it touched upon the fundamentals of EU copyright law, namely its protectable subject-matter. Intriguingly, the complexities of copyright were unveiled by the following question: "Does Union law preclude the taste of food\textemdashas the author’s own intellectual creation\textemdashfrom being protected by copyright?" Notwithstanding the court’s dissenting answer, which clarified the scope of EU copyright law, it is of paramount importance to also discuss and unravel the ruling’s preceding procedure, including the Opinion by the Advocate General, as it shed light on the many existing controversies within copyright law.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{vanDaalen2018b,

title = {Het privacy-argument tegen de Dopamine Machine},

author = {van Daalen, O.},

url = {https://www.ivir.nl/publicaties/download/PrivacyInformatie_2018_2.pdf},

year  = {2018},

date = {2018-10-12},

journal = {Privacy \& Informatierecht},

volume = {2018},

number = {2},

pages = {39-41},

abstract = {De kinderen van Apple-baas Steve Jobs mochten geen iPad gebruiken. 1 Maar Jobs was niet de enige. Veel techies in Silicon Valley zijn zich bewust van de verslavende effecten van IT \textendash ze hebben de producten namelijk zelf ontwikkeld. En nu steeds meer spijtoptanten oproepen tot regulering van onlinediensten zoals Facebook, vraag ik me af: welke rol kan het privacyrecht daarbij spelen?},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{vanEijk2018e,

title = {Deskundigenbericht: Juridische grondslag multilaterale informatie-uitwisseling},

author = {van Eijk, N. and Ryngaert, C.M.J.},

url = {https://www.ivir.nl/publicaties/download/Deskundigenbericht.pdf},

year  = {2018},

date = {2018-04-03},

volume = {2018},

note = {Bijlage IV bij CTIVD rapport nr. 56 over de multilaterale gegevensuitwisseling door de AIVD over (vermeende) jihadisten. Zie ook: https://www.ctivd.nl/actueel/nieuws/2018/03/28/index.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{vanEijk2018d,

title = {Enkele kanttekeningen bij de Wiv 2017: De uitbreiding van bevoegdheden getoetst aan mensenrechten},

author = {van Eijk, N. and Eijkman, Q.},

url = {https://www.ivir.nl/publicaties/download/JV_2018_1.pdf},

year  = {2018},

date = {2018-03-20},

journal = {Justiti\"{e}le Verkenningen},

volume = {2018},

number = {1},

pages = {99-113},

abstract = {Wij presenteren in dit artikel een aantal kanttekeningen bij de Wiv 2017. Dit doen wij door een aantal relevante in Nederland en in de Europese Unie verschenen overkoepelende studies over grondrechten te bespreken. Deze kanttekeningen zijn deels gebaseerd op normatieve uitgangspunten en aanbevelingen uit deze studies, deels ontleend aan nog lopend onderzoek. Gezien de aard en omvang van dit artikel is een selectie gemaakt en beperkt de

analyse zich tot het schetsen van de belangrijkste dilemma’s.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Bod\'{o}2018,

title = {Political micro-targeting: a Manchurian candidate or just a dark horse?},

author = {Bod\'{o}, B. and Helberger, N. and Vreese, C.H. de},

url = {https://policyreview.info/articles/analysis/political-micro-targeting-manchurian-candidate-or-just-dark-horse},

year  = {2018},

date = {2018-01-19},

journal = {Internet Policy Review},

volume = {2017},

number = {4},

abstract = {Political micro-targeting (PMT) has become a popular topic both in academia and in the public discussions after the surprise results of the 2016 US presidential election, the UK vote on leaving the European Union, and a number of general elections in Europe in 2017. Yet, we still know little about whether PMT is a tool with such destructive potential that it requires close societal control, or if it’s “just” a new phenomenon with currently unknown capacities, but which can ultimately be incorporated into our political processes.   In this article we identify the points where we think we need to further develop our analytical capacities around PMT. We argue that we need to decouple research from the US context, and through more non-US and comparative research we need to develop a better understanding of the macro, meso, and micro level factors that affect the adoption and success of PMTs across different countries. One of the most under-researched macro-level factors is law. We argue that PMT research must develop a better understanding of law, especially in Europe, where the regulatory frameworks around platforms, personal data, political and commercial speech do shape the use and effectiveness of PMT. We point out that the incorporation of such new factors calls for the sophistication of research designs, which currently rely too much on qualitative methods, and use too little of the data that exists on PMT. And finally, we call for distancing PMT research from the hype surrounding the new PMT capabilities, and the moral panics that quickly develop around its uses.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{McGonagle2017h,

title = {“Fake news”: False fears or real concerns?},

author = {McGonagle, T.},

url = {http://journals.sagepub.com/doi/full/10.1177/0924051917738685},

doi = {https://doi.org/10.1177/0924051917738685},

year  = {2017},

date = {2017-12-05},

journal = {Netherlands Quarterly of Human Rights},

volume = {35},

number = {4},

pages = {203-209},

abstract = {‘‘Fake news’’ has become a much-used and much-hyped term in the so-called ‘‘post-truth’’ era that we now live in. It is also much-maligned: it is often blamed for having a disruptive impact on the outcomes of elections and referenda and for skewing democratic public debate, with the 2016 US Presidential elections and Brexit referendum often cited as examples. ‘‘Fake news’’ has also been flagged for fuelling propaganda and ‘‘hate speech’’ and even violence. ‘‘Pizzagate’’ is an infamous example of exceptional circumstances in which a false news story had a central role in a shooting incident. In December 2016, a man in Washington D.C. took it upon himself to ‘‘self-investigate’’

a story (a completely unfounded conspiracy theory) that the Hillary Clinton campaign team was running a paedophile ring from the premises of a pizzeria. Shots were fired and he was arrested and charged with assault and related offences. Given all this bad press, it is perhaps little wonder that ‘‘fake news’’ has become a major preoccupation for international organisations, national law- and policy-makers, the media and media actors, civil society and academia. But what exactly is ‘‘fake news’’ and what is all the fuss about? In addressing these questions, this column will also consider historical and contemporary perspectives on the term and its relationship with human rights.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Dommering2017b,

title = {De Hoge Raad en Mein Kampf: Over een veranderde maar ongewisse koers},

author = {Dommering, E.},

url = {https://www.ivir.nl/publicaties/download/De-Hoge-Raad-en-Mein-Kampf.pdf},

year  = {2017},

date = {2017-11-16},

note = {In: Verandering van Koers, H.A. Groen c.s. red., Uitgeverij Datawyse 2017, ISBN 9789462957404, p. 13-20.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Fahy2017b,

title = {The Chilling Effect of Liability for Online Reader Comments},

author = {Fahy, R.},

url = {https://www.ivir.nl/publicaties/download/EHRLR_2017_4.pdf},

year  = {2017},

date = {2017-08-24},

journal = {European Human Rights Law Review},

volume = {2017},

number = {4},

pages = {387-393},

abstract = {This article assesses how the European Court of Human Rights has responded to the argument that holding online news media liable for reader comments has a chilling effect on freedom of expression. The article demonstrates how the Court first responded by dismissing the argument, and focused on the apparent lack of evidence for any such chilling effect. The article then argues that the Court has moved away from its initial rejection, and now accepts that a potential chilling effect, even without evidence, is integral to deciding whether online news media should be liable for reader comments. Finally, the article argues that this latter view is consistent with the Court’s precedent in other areas of

freedom of expression law where a similar chilling effect may also arise.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Dommering2017b,

title = {Annotatie bij Hoge Raad 14 februari 2017 (Mein Kampf)},

author = {Dommering, E.},

url = {https://www.ivir.nl/publicaties/download/Annotatie_NJ_2017_259.pdf},

year  = {2017},

date = {2017-07-18},

journal = {Nederlandse Jurisprudentie},

volume = {2017},

number = {28},

pages = {4119-4121},

abstract = {Verspreiding antiquarisch exemplaar Mein Kampf valt wel onder 137e 2e Sr, maar is niet strafbaar omdat de beperking in strijd komt met artikel 10 EVRM.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{Bosch2016,

title = {Wifi-tracking in de winkel(straat): inbreuk op de privacy?},

author = {Bosch, B.F.E. and van Eijk, N.},

url = {http://www.ivir.nl/publicaties/download/PrivacyInformatie_2016_6.pdf},

year  = {2016},

date = {2016-12-20},

journal = {Privacy \& Informatie},

number = {6},

pages = {238-246},

abstract = {Tegenwoordig wordt de consument op steeds grotere schaal gevolgd via de wifi-signalen die smartphones uitzenden. Inzicht in hoe consumenten zich gedragen in een winkel levert commerci\"{e}le voordelen op voor de winkeliers, maar ook risico's voor de persoonlijke levenssfeer. Onder de Wet bescherming persoonsgegevens is gegevensverwerking via wifi-tracking toegestaan, mits wordt voldaan aan de strenge eisen die de wet stelt. Ter vergelijking wordt gekeken naar de regulering van wifi-tracking in de Verenigde Staten.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}