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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From Visual Arts to Virtual Arts – some insights about Law, Art & Technology

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 by Marcílio Franca, Professor at the Federal University of Paraíba, Brazil

Leonardo Da Vinci’s life and work show us that innovation and technology have always been close to art and artists. Over the past few decades, however, deep technological innovations are modifying art in strange, new ways. The development and access to new technologies have radically changed not only the ways of producing art but also the ways of consuming, preserving, collecting and restoring art nowadays. Obviously, all this has complex legal repercussions.

Right at the University of Minho, for example, the researcher and multimedia artist João Martinho Moura is a world reference in digital art and computational aesthetics. For the past 15 years, he has been adopting new digital ways to represent audiovisual artifacts, with special interest in the human body. Some of his award-winning works can be seen at  http://jmartinho.net/. Light art, lasers, AI created art, artist robots, e-museums are also good examples the ways in which technology is making its impact in the art world and in the legal systems.

The complexity of authorship and the relevance of the dematerialization of artwork in the field of contemporary visual arts have already secured the birth of at least three Digital Art Biennials. The older is “The Wrong Art Biennale” (https://thewrong.org), a global, digital event aiming to create, promote and push forward-thinking contemporary digital art among artists, curators, collectors and institutions located in virtual pavilions. There is also the International Digital Art Biennial (BIAN), in Montréal, created in 2012. The younger Digital Art Biennial will happen in Brazil for the first time in 2020, but was born ten years ago in Belo Horizonte, as a Digital Art Festival.
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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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Online Legal Platforms – The beginning of the 4.0 Law Practice?

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 by Pedro Petiz, Master's student in Law and Informatics at UMinho

The 4.0 revolution has reached the legal services sector. New online platforms are emerging to connect clients and lawyers, while also providing new and innovative legal services. Nonetheless, several questions arise regarding these new businesses: Are they allowed under Portuguese law? And how are Bar Associations dealing with this new reality?

There are mainly two types of online legal platforms:

– Two-sided Platforms, where an intermediary selects the lawyers who appear on the website, defining the order in which they appear, or referring them to potential clients.[i]

– And websites providing legal services, which are provided directly or indirectly, not necessarily by lawyers.[ii] This category includes question and answer websites (https://answers.justia.com), legal chatbots (www.donotpay.com) and sites where legal documents are automatically drafted (https://lawhelpinteractive.org,[iii] http://www.a2jauthor.org[iv] or the Brazilian http://www.yousolveonline.com ).

Regarding the first type of platform, the Portuguese Bar Association has imposed a total prohibition on its use, on the grounds that they constitute “client solicitation”.[v] In my opinion, this prohibition is disproportionate and constitutes a breach of Article 101 of the TFEU.[vi]

As stated by the European Commission, professional rules “must be objectively necessary to attain a clearly articulated and legitimate public interest objective and they must be the mechanism least restrictive of competition to achieve that objective”.[vii]
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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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Editorial of May 2019

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 by Célia Zolynski, Professor of Law at Université Paris 1 – Panthéon-Sorbonne
 and Alexandre Veronese, Professor of Law at University of Brasília


Blockchain and security: an important debate for the legal community (especially from the civil law tradition)*

When we read and listen about the Blockchain technology, its main revolutionary character is the praised new manner by which the users would extract a new kind of trust from the operations endorsed. At some point, some writers even detail its technical design as being trustless. This technology – as some of their enthusiasts say – would therefore make it possible to replace, rather than displace, the trusted third party – an important technical feature that exists in most of the modern designs of private or public relationships – in various kinds of transactions and operations. The Blockchain enables this feature because it makes possible to guarantee the keeping of an unforgeable and updated register of digital records in real time. The technical functions of the Blockchain promise to secure many possible applications. An example is the use of the technology to ensure the integrity of a document or a digital archive over the time by anchoring it in the Blockchain. In addition, it is possible to create Blockchain systems to control or trace the circulation of digital archives and packages and even their usage. The Blockchain technology could therefore be able to guarantee the security of the storage files in the blocks using asymmetric encryption protocols in a peer-to-peer model. However, ten years after the launch of Bitcoin, in 2009, we are still largely in an exploratory phase of that technology. The blockchain and its applications remain immature: technically immature and, we should say, legally immature too. Several difficulties hinder the transition from the small-scale operations to bigger ones. One of the main concerns of the Blockchain technology is the safety of the designed applications. Such issue – the safety of the Blockchain – needs to be more debated than praised in order to avoid some misjudgments and overstatements. Just to begin, we are going to provide a provocative statement: Blockchain does not grant actual and complete security; from itself, the technology – and its prophets – indulge us with the illusion of safe and security. Why? We will divide the text in three parts, in order to pose problems to the Blockchain. First, we are going to describe that some technical issues that are entrenched in the design can be vulnerable to attacks and difficulties. Second, we are going to mention that – in legal terms – the Blockchain registers still will need a third party to be feasible as evidence in the courts. Lastly, we will remark that the so-called “smart contracts” are not contracts after all.
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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?

Artificial Intelligence Technology Futuristic

 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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Google (again) and advertising on the web. Comment on the European Commission Decision of 20th March 2019

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 by Pedro Madeira Froufe, Editor

Much of the creation of wealth through the digital economy (individualized advertising, anticipation of reactions from consumers to new products, etc.) depends on the knowledge of our tastes and ways of life, knowledge of our profiles and even the knowledge of how our brain reacts to advertising messages (that’s what “neuromarketing” is about) [1]. And of course, the scale counts! There is a kind of return of “economies of scale” in the field of advertising services. That is, there is a large / global business communication that is simultaneously individualized, as, as a result of the knowledge and algorithmic use of personal data of each of us, can adapt and address each group (increasingly small) of consumers, with messages tendentially personalized.
Individualized advertising, enhanced by the use of algorithms, is one of the activities that has grown the most and has created the propulsion of wealth (directly and indirectly) in the digital era.

It is in this context that we should place the last “Google decision” of the European Commission, dated March 20, 2019, regarding the use of the Google / AdSense for Search platform to raise and broker advertising associated with online surveys. The Commission has, in effect, decided to impose a financial penalty on Google and Alphabet Inc. (the parent company of Google LLC, formerly Google Inc.) amounting to EUR 1,490,000 for abuse of a dominant position (infringement of Article 102 of the TFEU).
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