Digital public services in the European Union: eHealth through the lens of administrative interoperability

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator


Digital Single Market appears as the common good to be achieved, in the political level, in the European Union which was also embraced by all its Member States, since national and European political agents understood new ICT tools changed the way the world works and how people relate to each other. Furthermore, its establishment allowed overcoming gaps that were appearing between national efforts on digitalization of their internal sectors, particularly when there was a need to make those sectors transnational, by connecting them in a cross-border dimension.

The path to make European efforts on digital domains more effective was to firstly modernise public services, by resorting to ICT tools – that would make them, and especially their relations with individuals, simpler and more flexible. Digitalization of public services was, then, approached through the lens of interoperability – method adopted in order to link national administrations amongst themselves and with European institutions.

Interoperability was proclaimed in the ISA2 Programme through article 1 (1) of the Decision 2015/2240: “[t]his Decision establishes, for 2016-2020, a programme on interoperability solutions and common frameworks for European public administrations, businesses and citizens (‘the ISA2 programme’)”. In this sense, a new paramount was born: the one of e-Government.

In order to meet e-Government goals, European and national agents have made particular efforts to develop other secondary public interests, that would rely on Public Administrations to concretize, implement and regulate them.

eHealth was one of them.
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Robots and civil liability (ongoing work within the EU)

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 by Susana Navas Navarro, Professor of Civil Law, Autonomous University of Barcelona

The broad interest shown by the European Union (EU) for the regulation of different aspects of robotics and artificial intelligence is nowadays very well known.[i] One of those aspects concerns the lines of thinking that I am interested in: civil liability for the use and handling of robots. Thus, in the first instance, it should be determined what is understood by “robot” for the communitarian institutions. In order to be considered as “robot”, an entity should meet the following conditions: i) acquisition of autonomy via sensors or exchanging data with the environment (interconnectivity), as well as the processing and analysis of this data; ii) capacity to learn from experience and also through interaction with other robots; iii) a minimal physical medium to distinguish them from a “virtual” robot; iv) adaptation of its behaviour and actions to the environment; v) absence of biological life. This leads to three basic categories of “smart robots”: 1) cyber-physical systems; 2) autonomous systems; 3) smart autonomous robots.[ii] Therefore, strictly speaking, a “robot” is an entity which is corporeal and, as an essential part of it, may or may not incorporate a system of artificial intelligence (embodied AI).

The concept of “robot” falls within the definition of AI, which is specified, on the basis of what scholars of computer science have advised, as: “Artificial intelligence (AI) systems are software (and possibly also hardware) systems designed by humans that, given a complex goal, act in the physical or digital dimension by perceiving their environment through data acquisition, interpreting the collected structured or unstructured data, reasoning on the knowledge, or processing the information, derived from this data and deciding the best action(s) to take to achieve the given goal. AI systems can either use symbolic rules or learn a numeric model, and they can also adapt their behaviour by analysing how the environment is affected by their previous actions. 
As a scientific discipline, AI includes several approaches and techniques, such as machine learning (of which deep learning and reinforcement learning are specific examples), machine reasoning (which includes planning, scheduling, knowledge representation and reasoning, search, and optimization), and robotics (which includes control, perception, sensors and actuators, as well as the integration of all other techniques into cyber-physical systems”.[iii]

Concerning the robot as a corporeal entity, issues related to civil liability are raised from a twofold perspective: firstly, in relation to the owner of a robot in the case of causation of damages to third parties when there is no legal relationship between them; and, secondly, regarding the damages that the robot may be caused to third parties due to its defects. From a legal standpoint, it should be noted that in most cases the “robot” is considered as “movable good” that, furthermore, may be classified as a “product”. We shall focus on each of these perspectives separately.
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Blockchain and art market

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 by Geo Magri, Professor at the University of Torino

In recent times, blockchain technology has begun to be used to ensure certainty in the circulation of works of art.  Through the blockchain it is possible to record the existence of any author’s rights concerning the work, or the transfer of ownership of an art object, in order to make its circulation safer. These are aspects that, for a global market like this one, are of central importance and that allow us to understand why the first projects were launched to create chains aimed at meeting the specific needs of this sector, overcoming the critical issues that the art market traditionally brings.

Already in the seventies an attempt was made to achieve a result like that which today guarantees the blockchain. At the time it was decided to use the analogic recording of works of art, through the deposit of a picture and the recording of data that allowed the reconstruction of transactions related to the work. The project was proposed by Bolaffi of Turin and was aimed at ensuring the origin and traceability of the works sold. The idea of the analogical register was not successful in the practice of the art market and this was not difficult to predict since it was an excessively large market for an efficient analogical register.
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Cyber-regulatory theories: between retrospection and ideologies

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by Luana Lund, specialist in telecommunications regulation (ANATEL, Brazil)
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This article presents a brief history of some of the main theories about internet regulation to identify ideological and historical relationships among them.

In the 1980s, the open-source movement advocated the development and common use of communication networks, which strengthened the belief of the technical community in an inclusive and democratic global network [1]. This context led to the defense of full freedom on the internet and generated debates about the regulation of cyberspace in the 1990s. In the juridical area, Cyberlaw movement represents the beginning of such discussions [2]. Some of these theorists believed in the configuration of cyberspace as an independent environment, not attainable by the sovereignty of the States. At that time, John Perry Barlow was the first to use the term “cyberspace” for the “global electronic social space.” In 1996, he published the “Internet Declaration of Independence“, claiming cyberspace as a place where “Governments of the Industrial World […] have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear […] Cyberspace does not lie within your borders” [3].
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New perspectives on sale of consumer goods – maximum harmonization and high protection of consumers as a condition for the further development of cross-border trade in single market

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 by Maria João Pestana de Vasconcelos, Professor at the School of Law, UMINHO 

As a part of Digital Single Market Strategy for Europe published in May 2015, the Commission adopted, on 9 December 2015, two proposals of Directives: one for a Directive on certain aspects concerning contracts for the online and other distance sales of goods (“Sales of Goods proposal” or “Sales of Goods Directive”); another for a Directive on certain aspects concerning contracts for the supply of digital content and digital services (proposal for a “Directive on Digital Content” or “Digital Content Directive”).

These proposals are the basis of a future reform on consumer sales contracts based on the principle of maximum harmonisation while providing for a high level of consumer protection.

It is already clear that the minimum harmonization approach, adopted by the Consumer Sales Directive (1999/44/EC) [i] has proved not to be appropriate to ensure the proper functioning of the internal market. Member States allowed go beyond the minimum rules, and to impose a high level of consumer protection, have acted on different elements and to different extents. As a result, national provisions transposing the Consumer Sales Directive (99/44/EC) significantly diverge today on essential elements, such as the absence or existence of a hierarchy of remedies. These disparities between the national laws of the Member States constitute one of the major obstacles to the development of the cross-border trade in Single Market given that they may adversely affect business (in particularly small and medium enterprises) and consumers[ii].
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A short introduction to accountability in machine-learning algorithms under the GDPR

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 by Andreia Oliveira, Master in EU Law (UMINHO)
 and Fernando Silva, Consulting coordinator - Portuguese Data  Protection National Commission

Artificial Intelligence (AI) can be defined as computer systems designed to solve a wide range of activities, that are “normally considered to require knowledge, perception, reasoning, learning, understanding and similar cognitive abilities” [1]. Having intelligent machines capable of imitating human’s actions, performances and activities seems to be the most common illustration about AI. One needs to recognise AI as being convoluted – thus, machine learning, big data and other terms as automatization must hold a seat when discussing AI.  Machine learning, for example, is defined as the ability of computer systems to improve their performance without explicitly programmed instructions: a system will be able to learn independently without human intervention [2]. To do this, machine learning develops new algorithms, different from the ones that were previously programmed, and includes them as new inputs it has acquired during the previous interactions.

The capabilities of machine learning may put privacy and data protection in jeopardy. Therefore, ascertaining liability would be inevitable and would imply the consideration of inter alia all plausible actors that can be called upon account.

Under the General Data Protection Regulation (GDPR), the principle of accountability is intrinsically linked to the principle of transparency. Transparency empowers data subjects to hold data controllers and processors accountable and to exercise control over their personal data. Accountability requires transparency of processing operations, however transparency does not constitute accountability [3]. On the contrary, transparency acts as an accountability’ helper – e.g. helping to avoid barriers, such as opacity.
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e-Justice paradigm and Artificial Intelligence (AI): where effective judicial protection stands?

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 by Joana Abreu, Editor

2019 marks the beginning of a new era for e-Justice.

Looking at both Council’s e-Justice Strategy (2019/C 96/04) and Action Plan (2019/C 96/05) from 2019 to 2023, we are able to understand how this European institution is engaged to establish sensitivities on Artificial Intelligence in justice fields. Furthermore, the European Commission also presented a report on the previous Action Plan (Evaluation study on the outcome of the e-Justice Action Plan 2014-2018 and the way forward – Final Report – DT4EU), where it advanced the need to bet on artificial intelligence mechanisms in the e-Justice fields.

In fact, the European Commission, when questioned stakeholders on the possibility of using Artificial Intelligence technologies in the domain of justice, 41% understood it should be used and other 41% understood its potentialities could be explored.

Taking into consideration those numbers, the Council also established the need to understand AI’s influence and potential on e-Justice fields, addressing it under the topic “Evolutivity” and relating to future perspectives.
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European Ethical Charter on the use of artificial intelligence in judicial systems and their environment: what are the implications of this measure?

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 by Amanda Espiñeira, Master Student at University of Brasília

Artificial intelligence has become a topic of great interest for the advancement of the information society and automation. Through various themes, from art, gastronomy, the world of games, the various mechanisms that involve AI allow the expansion of human creativity and capabilities, and are very important, especially when it comes to judicial systems. A field that for a long time has remained closed to innovations and digital transformations, today it opens and allows that there is more celerity and transparency to the decisions of the legal world. In other words, AI promises to fill a gap in the area, which still has plastered processes, such as the registry offices, which are almost synonymous with bureaucracy.

However, the importance of the theme and its efficiency, debating ethical aspects in this area is extremely relevant because AI can extract insights, we could never come up using traditional data mining techniques. And is even more important in the context of recent data protection regulation, especially GDPR- General Data Protection Regulation.

Thus, the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe has adopted the first European text setting out ethical principles relating to the use of artificial intelligence (AI) in judicial systems, published on December 4, 2018[1].
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Algorithm-driven collusion

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 by Virgílio Pereira, collaborating member of CEDU

It has been said that digital markets are new and different.[i]  Indeed, competition enforcement reforms have already begun their journey, tackling the unorthodox dynamic of digital markets. Examples include the reforms taking place in Germany.[ii] They have entailed, among others, the possibility of setting up a digital agency, responsible for the supervision of digital markets, whose tasks would include dispute resolution in competition issues.[iii] Becoming vigilant and gathering know-how is certainly a valuable starting point.

Recently, the Council adopted the Commission’s proposal intended to empower Member States’ competition authorities to be more effective enforcers.[iv] It includes reinforcing competition authorities’ investigative powers, including their power to collect digital evidence. Discussion on the unorthodoxy of digital markets and challenges arising from them should take place within the context of the implementation of the Directive, or more generally, within the context of the European Competition Network.
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Brexit and the possibility of “withdrawing the withdrawal”: a hypothetical question?

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 by Alessandra Silveira, Editor

In case C-621/18, Wightman and others, pending judgment by the ECJ, the request for a preliminary ruling concerns the interpretation of Article 50 TEU. It has been made in proceedings where the opposing Scots parties are Andy Wightman and o., on the one hand, and the Secretary of State for Exiting the European Union, on the other, raising the question whether it is possible to revoke the notification of the intention of the United Kingdom of Great Britain and Northern Ireland to withdraw from the European Union. The Court of Session, Inner House, First Division (Scotland), seeks, in essence, to ascertain whether, where a Member State has notified the European Council of its intention to withdraw from the European Union in accordance with Article 50 TEU, EU law permits that Member State to unilaterally revoke its notification before the end of the period of two years referred to in that Article. If so, the referring court is uncertain as to the conditions governing such a revocation and its effects relative to that Member State remaining within the European Union.

The referring court states that, under Section 13 of the EU (Withdrawal) Act 2018, the withdrawal agreement which might be concluded between the United Kingdom and the Union under Article 50(2) TEU, setting out the arrangements for that withdrawal, may be ratified only if that agreement and the framework for the future relationship of the United Kingdom and the European Union has been approved by the Parliament of the United Kingdom. The referring court states that, where the withdrawal agreement is not approved by that Parliament, and if no other proposal is made, the departure of the United Kingdom from the Union will nonetheless take effect as from 29 March 2019. The referring court adds that it is uncertain whether it is possible to revoke the notification unilaterally and to remain within the European Union. That court also states that an answer from the ECJ will clarify the options open to the parliamentarians when they vote on those matters.
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