Editorial of January 2019

Property Intellectual Copyright Symbol Protection

 by Alexandre Veronese, Professor at University of Brasília


Article 13 and the vigilance dilemma

The first US battles about filtering

In light of the worldwide ongoing debate surrounding legal regimes over internet, in special the recent controversies on amendments proposals to applicable EU rules, such as Directive 96/9, Directive 2001/29 or Directive 2012/28, but most notably Article 13 of the (soon-to-be) Directive on Copyright in the Digital Single Market, it is of utmost importance to seek some perspective. The topic is relevant as much as complex with a range of aspects to consider. For instance, one of the approaches the EU is giving to the matter involves the use of internet (or digital tools in general) for new cultural purposes following the celebration in 2018 of the European Year of Cultural Heritage. In that regard, I had the opportunity to reflect upon this debate alongside Professor Alessandra Silveira, editor of the Blog of UNIO, and other colleagues in an excellent Portuguese podcast. In this post, I intend to shed some light in the global depth of the matter by analysing the American inaugural experience.

At the beginning of the widespread usage of the Internet, the United States society was immersed in a debate about how to deal with offensive content. In the 1990s, Internet had no boundaries and no firewalls to prevent the incoming waves of pornographic and unusual materials. Quickly, a political movement made a strong statement in order to protect American families from that threat. In 1996, the US Congress passed a bill named Communications Decency Act, also known as the CDA. The Bill was signed into Law by the former President Bill Clinton. The CDA was intended to provide an effective system to take down offensive content. Some of the founders of the Internet launched a campaign against the CDA. The now widely famous Electronic Frontier Foundation was the spearhead of the resistance. Until today, we remember the Declaration of Freedom in the Internet, which was written by John Perry Barlow. The major weapon of the resistance was the First Amendment of the US Constitution. Some lawsuits were filled and in a brief timespan the US Supreme Court took down the CDA for it was ruled as unconstitutional. The Supreme Court maintained the long-aged interpretation that the State must be out of any action to perform any possible kind of censorship (Reno v. ACLU, 1997).
Continue reading “Editorial of January 2019”

Advertisements

Editorial of December 2018

4017357944_b993d8ba64_o

 by Sergio Maia, Managing Editor

Multiannual financial framework, budgets and elections: is there room for convergence?

Current status of EU politics barely hides that convergence seems more and more dramatic, as the elections next May are rapidly approaching amidst uncertainty, Brexit and national populisms. Despite the signal Emmanuel Macron attempted to send recently by addressing the German Bundestag – the first French president to do so in 18 years – in favour of unity against chaos, there is little doubt that the moment is of euro-tension, somewhat of pre-storm. Italy is (literally) stepping on the European Commission’s budgetary recommendations; Brexit withdrawal agreement conclusion is an incognita on the British side (there is also the preliminary reference on its revocability under appreciation in CJEU); Steve Bannon is trying to fund extremist right-wing candidates for the European Parliament election; Poland is disguising its real commitment to implement CJEU interim measures; new migration rules are not settled, etc.

On top of that, there is an ongoing negotiation for the next multiannual financial framework (MFF) and in parallel proposals for a Eurozone specific budget as of 2021 – which was the underlying pretext for Macron’s speech at the Bundestag. The original idea of the French president was to equip the Eurozone with a separate budget to assist Member States experiencing instabilities in their economies. In other words, it would serve as a sort of debt mutualisation guarantee in critical times. This was only insidiously mentioned in the Meseberg Declaration, but it was mentioned nevertheless. The motivation for this tool was to provide an enhancement of the general balance between European economies so that the different levels of development in the EMU could be compensated for the benefit of Euro (stabilisation, prices) and trade flow in the internal market.
Continue reading “Editorial of December 2018”

Editorial of November 2018

3239432996_28e58b44d9_o

 by Alessandra Silveira, Editor


In the face of globalised populism, European Union as a kind of “life insurance”

In case C-619/18, Commission v Poland, pending judgment by the Court of Justice of the European Union (ECJ), the European Commission has requested the Court, in the context of interim proceedings, to order Poland to suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges,[i] among other measures.

As the ECJ Press Release No 159/18 briefly explains, on 3 April 2018 the new Polish Law on the Supreme Court entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65. The new age limit applies as of the date of entry into force of that Law. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his/her duties and a certificate stating that his/her health conditions allow him/her to serve, and must be consented to by the President of the Republic of Poland. Thus, according to the Law, serving Supreme Court judges who reached the age of 65 before that Law entered into force or, at the latest, on 3 July 2018, were required to retire on 4 July 2018, unless they had submitted such a statement and such a certificate by 3 May 2018 inclusive and the President of the Republic of Poland had granted them permission to continue in active service at the Supreme Court. In making his decision, the President of the Republic of Poland is not bound by any criteria and that decision is not subject to any form of judicial review. Furthermore, the Law on the Supreme Court gives the President of the Republic of Poland the power to freely decide, until 3 April 2019, to increase the number of Supreme Court judges.

As we know, the Vice-President of the Court, Ms Rosario de Lapuerta, on 19 October 2018, provisionally granted all the Commission’s requests – and Poland must immediately suspend the application of the new Polish Law on the Supreme Court.[ii] The legal basis of such ruling, relying upon judicial independence as a general principle of EU law and as a fundamental right protected in its order, has been built in the recent ECJ case-law, especially in judgments Associação Sindical dos Juízes Portugueses (ASJP) and LM[iii].
Continue reading “Editorial of November 2018”

Editorial of October 2018

31670713316_c6f14c8988_o

 by Vlad Jurje, PhD candidate and Lecturer at Universidad Rey Juan Carlos


Poland v. Fundamental Rights?

A new episode concerning to the Rule of Law in Poland has recently taken place and the European Commission is very concerned. After the recent reform of the National Council of the Judiciary[i], the Polish Parliament has the capacity to decide when to appoint the member judges that compose it. A fact that seriously undermines the norms and international standards on which the independence of the judicial power in Europe is regulated.

We also highlight the instability that has arisen from the reform of the Constitutional Court in Poland because the interference that the Executive and the Legislative branches have committed put at risk the independence of the judicial power. According to the new law which has come into force, out of the 72 current members that form part of the Supreme Court 27 could be forced to retire, since the retirement age was changed: instead of retiring at 70, the new law would remove men at 65 and women at 60.
Continue reading “Editorial of October 2018”

1st August 2018, Earth Overshoot Day

foto

 by Sophie Perez Fernandes, Junior Editor

According to data from the Global Footprint Network, August 1 is Earth Overshoot Day 2018.

Earth Overshoot Day is an initiative of Global Footprint Network, a non-profit international research organization dedicated to the development and promotion of tools to promote sustainable development. The date of Earth Overshoot Day is calculated by comparing two metrics: the Global Ecological Footprint, humanity’s total yearly consumption, with biocapacity, Earth’s capacity to regenerate renewable natural resources in that year. Both metrics are calculated each year with National Footprint Accounts and using UN statistics and data from additional sources.

As explained in the website, Earth Overshoot Date marks the date when all of humanity have used more from nature than our planet can renew in the entire year. According to the information disclosed last June, humanity will have exhausted on August 1, that is, in just over seven months, its entire nature’s resource budget of 2018. As from that date, the world will live on credit in 2018 – an environmental credit that, according to the data disclosed, is contracted earlier and earlier. Exceeding in 1961, planet Earth registered the first deficit in its environmental budget in the 1970s. Since then, the growing ecological footprint that accompanies the demographic and economic growth of the planet explains that Earth Overshoot Day occurs ever earlier – until the earliest date calculated of August 1 in 2018.
Continue reading “1st August 2018, Earth Overshoot Day”

Editorial of July 2018

artificial-intelligence-698122_960_720

 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor


Artificial intelligence and fundamental rights: the problem of regulation aimed at avoiding algorithmic discrimination

The scandal involving Facebook and Cambridge Analytica (a private company for data analysis and strategic communication) raises, among others, the problem of regulating learning algorithms. And the problem lies above all in the fact that there is no necessary connection between intelligence and free will. Unlike human beings, algorithms do not have a will of their own, they serve the goals that are set for them Though spectacular, artificial intelligence bears little resemblance to the mental processes of humans – as the Portuguese neuroscientist António Damásio, Professor at the University of Southern California, brilliantly explains[i]. To this extent, not all impacts of artificial intelligence are easily regulated or translated into legislation – and so traditional regulation might not work[ii].

In a study dedicated to explaining why data (including personal data) are at the basis of the Machine-Learning Revolution – and to what extent artificial intelligence is reconfiguring science, business, and politics – another Portuguese scientist, Pedro Domingos, Professor in the Department of Computer Science and Engineering at the University of Washington, explains that the problem that defines the digital age is the following: how do we find each other? This applies to both producers and consumers – who need to establish a connection before any transaction happens –, but also to anyone looking for a job or a romantic partner. Computers allowed the existence of the Internet – and the Internet created a flood of data and the problem of limitless choice. Now, machine learning uses this infinity of data to help solve the limitless choice problem. Netflix may have 100,000 DVD titles in stock, but if customers cannot find the ones they like, they will end up choosing the hits; so, Netflix uses a learning algorithm that identifies customer tastes and recommends DVDs. Simple as that, explains the Author[iii].
Continue reading “Editorial of July 2018”

Editorial of June 2018

judge_hammer_judgement_court_council_crime_law_gavel-801066 (1)

 by Joana Covelo de Abreu, Junior Editor


E-justice: e-codex as the interoperable solution to a judicial integration?

Digital Single Market has become a new political calling for the EU as it can promote both economic growth and sustainable development.

Some secondary public interests were devised in order to promote it and to achieve its goals. Then, EU is engaged on delivering those solutions and it is doing so through its shared competences [Articles 2(2) and 4(2) of the TFEU].

On the matter, from early on the European institutions devised interoperability as the method to be implemented – as an ICT concept, “the European Interoperability Framework promotes and supports the delivery of European public services by fostering cross-border and cross-sectoral interoperability”, where judicial services are also included. This interoperability scheme was deepened under ISA2 Programme (Decision No. 2015/2044), standing for “the ability of disparate and diverse organizations to interact towards mutually beneficial and agreed common goals, involving the sharing of information and knowledge between organizations, through the business processes they support, by means of the exchange of data between their respective ICT systems” [Article 2(1) of the mentioned Decision].

Taking this method as a referral, both Member States and European institutions have to be able to interconnect their systems to promote data exchange. This definition entails three main dimensions: a technical, a semantic and an organisational interoperability since it addresses not only the electronic solutions that have to be achieved but it will also impact on the way the involved agents communicate and shape the organisations where they are included.
Continue reading “Editorial of June 2018”

Editorial of May 2018

2504979711_788a8ca2f5_o

 by Joana Whyte, Junior Editor and Associate Lawyer at SRS Advogados


The German Court’s decision on Mr. Puigdemont’s EAW and its similarities to a Swiss Cheese

The European Arrest Warrant (EAW) represented one of the most important developments of the Area of Freedom, Security and Justice whose creation and development with the Amsterdam Treaty became one of the European Union’s objectives.

The EAW abolished the traditional process of extradition and made it simpler for European Member States to request the arrest and surrender of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

The EAW is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to in the 1999 Tampere European Council as the “cornerstone of judicial cooperation in both civil and criminal matters within the Union”.

According to the principle of mutual recognition, a decision adopted by a judicial authority of a Member State (the issuing Member State), on the grounds of its internal legislation, must be recognised, accepted and executed by the executing Member States’ judicial authorities, even though the same case, according to the executing Member States’ law, could lead to a different outcome.

The EAW also abolished the principle of double criminality for a list of 32 crimes established in Article 2(2) of the EAW’s Framework Decision (Council Framework Decision 2002/584/JHA).

This is fundamentally where the issue on Carles Puigdemont case arises.
Continue reading “Editorial of May 2018”

Editorial of April 2018

3971747520_6190976f48_o

 by Joana Whyte, Associate Lawyer at SRS Advogados and member of CEDU


Fashionistas rejoice, it’s the end of Geo-Blocking!

In a vote of 557 for and 89 against, Regulation 2018/302 of the European Parliament and the Council of 28 February 2018, which addresses unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market, was approved. The new set of rules will apply from December 2018.

The end of Geo-Blocking has been a priority for the EU in the creation of a digital single market. This Regulation aims to address unjustified geo-blocking by removing certain barriers to the functioning of the internal market.

This is good news not only for fashion consumers but also for consumers of other services/ industries. The new set of rules also applies to the offline provision of services by hotels and car rental companies and the online sale of event tickets, as well as to the provision of electronic services (cloud services, data storage, website management).

Put simply, Geo-blocking is the practice that prevents consumers in one Member State from buying a good or service sold online in another Member State. This practice has been harming fashion consumers by preventing them from purchasing from websites and apps from other Member States and also by the application of different general conditions of access to goods and services to customers from other Member States – e.g. refusal to deliver abroad, to accept payment, rerouting and website access blocks.
Continue reading “Editorial of April 2018”

Editorial of March 2018

Election_MG_3455

 by Tiago Cabral, member of CEDU

Homeopathic Democracy: The European Power Struggle over the Spitzenkandidaten

1. According to article 17(7), TEU “taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members”. There are several issues in this article, some of them we even had the opportunity to discuss before.

2. In fact, when talking about the President of the European Commission (EC) it is quite a stretch to state that there is an “election” by the European Parliament (EP). Politically inspired wording notwithstanding, the truth is that the European Council (ECON) holds most of the cards in the selection of EC’s President and the balance of power tends to favour this institution. There are also some notorious similarities between the position of the EP in relation to the ECON in the selection of the President of the EC and the position of the EP in relation to the Council in the consent legislative procedure. While it is possible to argue that there is an “indirectly-indirect election”[i], we believe that it would be more accurate to state that the Parliament approves and has veto power over the ECON’s choice.

3. However, the 2014 elections to the EP brought with them a rather interesting innovation: the Spitzenkandidaten (leading candidate). This procedure aims to give “direct” or at least “quasi-direct” democratic legitimacy to the President of the EC by tying the nomination to the EP’s elections. First the political parties choose their leading candidate, then the people vote, then the ECON and EP obey their will by confirming candidate chosen by the citizens[ii]. There is some debate on who should be nominated by the ECON and approved by the EP, the candidate from the party who won the most seats in the elections or the candidate from the coalition best placed to guarantee a passing majority. Under the current Spitzenkandidaten rules the second choice seems to make the most sense. Nevertheless, it seems likely that in the current European political climate the candidate from the biggest party will also be the best positioned to achieve a solid majority.
Continue reading “Editorial of March 2018”