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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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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Editorial of January 2019

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 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).
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The first steps of a revolution with a set date (25 May 2018): the “new” General Data Protection regime

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by Pedro Madeira Froufe, Editor


1. Homo digitalis[i] is increasingly more present in all of us. It surrounds us, it captures us. Our daily life is digitalising rapidly. We live, factually and considerably, a virtual existence… but very real! The real and the virtual merge in our normal life; the frontiers between these dimensions of our existence are bluring. Yet, this high-tech life of ours does not seem to be easily framed by law. Law has its own time – for now barely compatible with the speed of technologic developments. Besides, in face of new realities, it naturally hesitates in the pursuit of the value path (therefore, normative) to follow. We must give (its) time to law, without disregarding the growth of homo digitalis.

2. Well, today (25 May 2018) the enforcement of Regulation 2016/679 (GDPR) begins. Since 25 January 2012 (date of the presentation of the proposal for the Regulation) until now the problems with respect to the protection of fundamental rights – in particular the guarantee of personal data security (Article 8 CFREU) – have been progressively clearer as a result of the increase in the digital dimension of our lives. Definitely, the personal data became of economic importance that recently publicized media cases (for example, “Facebook vs. Cambridge Analytics”) underline. Its reuse for purposes other than those justifying its treatment, transaction and crossing, together with the development of the use of algorithms (so-called “artificial intelligence” techniques) have made it necessary to reinforce the uniform guarantees of citizens, owners of personal data, increasingly digitized.
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The EU and the challenges of the digital economy

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 by Iva Guterres, PhD student at the University of Leeds

In 1995 Don Tapscotts coined the term Digital Economy in his book, “The Digital Economy: Promise and Peril in the Age of Networked Intelligence”. At the time, he was far for imagining just how the future would be dictated by the internet and technological development (then still in its infancy). In the meantime, the internet has become a huge part of the global economy.  Tapscotts’ book established the connection between the internet and the way economic models would change the way business was done and seen from there onwards.

At the beginning of the 1990s one major question rose on the legal landscape. What would the challenges be for global e-commerce and the tax rules or even global digital taxation? In 1996, David Tillinghast[i] wrote an article in which he questioned how traditional tax rules or policies would react to cross-border e-commerce.

Since then, history has witnessed radical changes in society and in the economy, which took Klaus Schwas, founder and chairman of the World Economic Forum, to write the book, “The fourth Industrial Revolution in 2016”.

In recent years, the EU and the OECD have been keeping an eye on business activities, especially since 2013, through the BEPS project (The Base Erosion and Profit Shifting). This was motivated by the behaviour of multinationals attempting to avoid paying tax in their home countries by taking their businesses abroad to low and no-tax jurisdictions. This generated practices and behaviors of schemes indicting aggressive fiscal planning.
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