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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Editorial of April 2018

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 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.
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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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Competition, coin mining and plastic memories: why the EU should watch the Web Summit carefully

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by Tiago Cabral, member of CEDU

After the overall success of the 2016 edition – with a few exceptions like the failing Wi-Fi[i]– Lisbon hosted for the second time “the largest tech conference in the world”. We are obviously referring to this year’s edition of Web Summit which brought about 60.000 attendees from more than 170 countries to the Portuguese capital. This event is obviously significant to the Portuguese economy with an investment of about 1.3 Million Euros originating an expected return of about 300 Million. But there is more to Web Summit than the number of attendees or its effect on the Portuguese economy (even if both are relevant), it offers a look into the future and the future brings a plethora of complicated legal and political challenges. Some of these challenges demand a supranational response and the EU should watch very carefully the trends coming out of Lisbon. In the following paragraphs, we shall highlight a few topics to illustrate.

1. “The Digital Single Market has become a new political and constitutional calling for the EU” and it cannot work in the absence of healthy competition. The European Commissioner for Competition’s “clearing the path for innovation” speech[ii] (7th November) – even if its content or delivery certainly did not impress us – made clear how seriously the Commission is taking this issue. American Tech Giants dominate the EU’s market and without proper competition enforcement, European companies may fall prey to anti-competitive behaviour before they have the chance to get a foothold. The speech also made a few interesting points about the growing importance of big data in competition and about trust in competition. However, it had a rather uncomfortable “Google paranoia” emanating from it. The 2.42€ billion fine against Google for breaching EU antitrust rules was historic – whether or not we agree with it –, but so were, for example, Microsoft v. Commission (2007) and the 561€ million fine against Microsoft (2013) for non-compliance with browser choice commitments. Yet, by name the Commissioner only referred to Google. There was a reference to the issue of special tax treatment, which immediately brings the controversies with Apple and Amazon[iii] to mind, but the companies were not named. Since there was no time to properly explain the details of the referred antitrust proceeding – or of the other two ongoing antitrust proceedings against Google, regarding AdSense and Android – the speech did nothing to further inform the audience on this issue and only left the feeling that there is a fixation on Google in the Commission. Interestingly, the 6th November intervention by the Commissioner where she was interviewed by Kara Swisher suffers no such issues. The interviewer asked the right questions, what companies are breaking the rules, what is the Commission’s reaction and what are the consequences. There was no singling out of a company with references to Google, Amazon, Apple and Facebook, no attempts to explain the complicated reasoning behind the proceedings in a few short minutes, the comparisons to the US also added value to the interview.

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Editorial of October 2017

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by Joana Covelo de Abreu, Junior Editor


Promotion of internet connectivity in local communities (“WIFI4EU” legislative framework): deepening European Digital Single Market through interoperability solutions

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

Therefore, four researchers – which are, respectively, Editors and Junior Editors of this Blog (Alessandra Silveira, as Scientific Coordinator; Pedro Froufe; Joana Covelo de Abreu, as the responsible for the research deliverable; and Sophie Perez) – were awarded a Jean Monnet Project funding by the European Commission, concerning the theme “EU Digital Single Market as a political calling: interoperability as the way forward”, with the acronym “INTEROP”. This project, with a 2 years’ duration starting on September 2017, is settled on scientific research around administrative interoperable solutions in order to evolve and develop new juridical sensitivities that can rely on interoperable environments, especially concerning debt recovery in the European Union.

Taking into consideration new developments on administrative connectivity, last September 12th 2017, the European Parliament discussed and approved a European Resolution which endorses the necessary legislative alterations, settled on a new Regulation regarding the promotion of Internet connectivity in local communities, universally known as “WiFi4EU”. It will promote the installation of free Wi-Fi spots in public places, squares, municipalities’ facilities, libraries and hospitals. Carlos Zorrinho, a Portuguese Member of the European Parliament (MEP), was the Rapporteur of the resolution, and understood that this solution will promote “neutrality on internet access” despite the geographical location or the economic conditions of the user – “it does not discriminate no one and no territory”. Therefore, “WiFi4EU” is the embryo of the proclaimed European Gigabit Society.

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Editorial of September 2017

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by Joana Covelo de Abreu, Junior Editor


Effective judicial protection concerning debt recovery: branding the judicial reentrée

The European Union is now living a post crisis’ recovery and, to achieve that, the Commission understood in its 2013 Citizenship Report the European Union was now pursuing two new goals: an economic recovery and a sustainable growth. To meet those political objectives, the European Union adopted Regulation (EU) No. 2015/2421 which revised both European Small Claims Procedure [Regulation (EC) No. 861/2007] and the European order for payment procedure [Regulation (EC) No. 1896/2006]. In fact, both these instruments were reputed, already in 2013, as being able to definitely influence European economic recovery by boosting Internal Market functioning and delivering better observance of fundamental freedoms by protecting those economic agents that interacted in a cross-border context.

The changes brought by Regulation No. 2015/2421 are applicable since 14th July 2017 and, so, as the courts’ recession is going on – for instance, in Portugal this started in the 16th July 2017 and it will end in the 31st August 2017 – the real impact of these legislative precisions are going only to be felt when the judicial réentrée happens.

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Europe and the train of the Digital Single Market

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by Isabel Espín, Professor at the Law School of Universidade de Santiago de Compostela

The European Union must not miss the train of a true digital single market that will keep the momentum of its important digital content industry and make it more competitive without losing the essence of European cultural identity.

The Communication from the Commission on a strategy for the Single Digital Market in Europe of 6 May 2015 takes account of this and calls for a comprehensive legislative reform in order to combat fragmentation and barriers in the European digital market, a situation that has been affecting Europe’s leadership capacity in the global digital economy.

The basis for such regulatory initiatives are Article 4 (2) (a) and Articles 26, 27, 114 and 115 of the Treaty on the Functioning of the European Union. There are many topics involved in a comprehensive and integrated single market initiative: data protection, e-commerce, consumer protection, access (broadband and interoperability), competition law, taxation, etc.

From the point of view of copyright, the Commission’s communication on promoting a European economy founded on fair, efficient and competitive copyright in the digital single market, of 14 September 2016, is the instrument that point out the initiatives concerning the protection of copyright in the digital single market. Such initiatives are: the Proposal for a Regulation regulating copyright and related rights for online television broadcasts and rebroadcasts on online TV and radio programs; Proposal for a Regulation governing the exchange of accessible copies between the EU and third countries part of the Marrakesh Treaty; Proposal for a Directive to facilitate access to public works for blind and or visually impaired persons (Marrakech Treaty).

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Editorial of January 2017

 

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by Joana Covelo de Abreu, Junior Editor
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New year’s resolutions: digital single market in 2017 – the year of interoperability

Digital Single Market is one of the major political goals for EU and its Member States since digital tools have shaped, for the past last decade, how economy behaves and how economic growth is relying on IT tools. In fact, digital economy can create growth and employment all across our continent. On the other hand, digital mechanisms cover almost every economic field, from transportation to clothes, from movies to sports since online platforms have the ability to create and shape new markets, challenging traditional ones.

The Digital Agenda for Europe (DAE) is one of the initiatives under Europe 2020 Strategy and it aims to promote economic growth and social benefits by achieving the digital single market. So it is named as one of the secondary public interests that must be pursued by European administration – both national public administrations (when they apply EU law and act as European functioning administrations) and European institutions and, in that sense, especially national public administrations must feel engaged to promote this end and objective, otherwise if those are the ones to firstly resist to innovation, Internal Market adaptation to new framework standards will suffer and economic prosperity in Europe can be undermined.

Therefore, EU has created several mechanisms to foster interoperability solutions that would bring together institutions, national public administrations, companies and individuals. In this context, interoperability stands 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”. It demands and implies an effective interconnection between digital components where standardization has an essential role to play in increasing the interoperability of new technologies within the Digital Single Market. It aims to facilitate access to data and services in a protected and interoperable environment, promoting fair competition and data protection.

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