Information Society Services Research Articles

EU: Prohibition of information society service for online sale of medicinal products

EU: Prohibition of information society service for online sale of medicinal products

Information Society Services and Their Cybersecurity

Information Society Services and Their Cybersecurity

Article: EU Law and the Member States’ Competence to Regulate the Operation of Collaborative Economy Platforms – Where Do We Stand after the Digital Services Act

The article analyses selected legal aspects of the functioning of collaborative economy platforms in the internal market of the European Union. The objective is to analyse the scope of the competences left to the Member States to regulate the operation of collaborative economy platforms, both these established on their territories and these benefitting from the freedom to provide crossborder services, after the adoption of the Digital Services Act. The article covers the evolution of EU law concerning online platforms (including collaborative economy platforms), interpretation of information society services, as well as scrutinises provisions of the E-commerce Directive and the Digital Services Act. Free movement of services, internal market, collaborative economy, sharing economy, collaborative platforms

New European Union’s Regulatory Framework of the Digital Space: the Digital Markets Act and the Digital Services Act

With the adoption of two regulations in 2022, the Digital Markets Act (DMA) and the Digital Services Act (DSA), the European Union completed its digital services regulatory reform aimed at laying down horizontal rules applicable to the key providers of information society services, including large online platforms. Based on the legislative history, existing case law and the unfolding legal doctrine, this article examines links between the two legal instruments, key aspects of the new regulatory framework, as well as selected legal issues relating to its future application. All opinions expressed in this article are author’s personal views.

Information Society Service Providers’ Liability in Public Data Storage

Czech national group of the IFPI (Česká národní skupina Mezinárodní federace hudebního průmyslu, z. s.) (plaintiff) v I&Q GROUP, spol. s r.o. (defendant 1), Hellspy SE (defendant 2)

Transformação Digital e Proteção de Dados: Consentimento Informado

In this paper, we undertake to study the central role informed consent plays, with regard to the processing of personal data. To that purpose we will be examining the elements and conditions to obtain a valid and informed consent. We shall pay special attention to children´s consent in the context of information society services.

Granting of Consent by a Child for the Processing of Their Personal Data Within the Framework of Information Society Services

For a long time, it has been observed that services available in the virtual world, such as social networks, gaming platforms, music streaming services, have attracted the interest of internet users of different ages. They include children, who require special protection as relates to the processing of their personal data. These issues have been addressed by the EU legislator in Art. 8 of GDPR2. The purpose of this paper is to analyze the solutions adopted in Article 8 GDPR and to assess their application in practice.

The Polish transposition of the press publishers’ right: waiting for the miracle?

... The implementation process of the press publishers’ related right introduced in Article 15 of the CDSM Directive is either nearing completion or has already been completed in most Member States. The implementation of the right that entitles press publishers to control the use of their publications by information society service providers (ISSPs) and to negotiate the appropriate remuneration is mandatory. Poland is still at the initial stage of the implementation process. On 30 June 2020, the Ministry of Culture announced a public consultation on the transposition of the CDSM Directive, which ran until 30 September 2020. The Council of Ministers scheduled the draft bill to be approved by the end of 2021. Unfortunately, to this day, it has not been published. It is worth recalling that the CDSM Directive should have been implemented by 7 June 2021, and the first country to introduce the press publishers’ right was France, which amended its Intellectual Property Code with the law n° 2019–775 on 24 July 2019. These significant time gaps in the regulation of press publishers’ right may consequently contribute to disparities in the level of publisher protection from one Member State to another, as well as creating legal uncertainty. On a side note, it is worth noting that not all scholars praise the quality of the French implementation,1 so the question of whether the speed of the right’s adoption always implies a good outcome.

Regulating Composite Platform Economy Services: Examining the Applicable Legal Framework in Light of Recent Judicial Developments

Numerous platform operators provide composite services comprising electronic and non-electronic elements, whose legal classification has been highly debated. This is partly explained by the fact that theEU law regime applicable to information society services (ISS) is far more favourable to businesses than that applicable to other types of services. The most recent case-law, however, has noticeably strengthened Member State regulatory prerogatives regarding ISS by, inter alia, giving a whole new meaning to the provisions of the E-commerce Directive. This twenty-year old legal act certainly needed reshuffling, but the Court’s approach has created a high degree of uncertainty forMember States wishing to regulate ISS in compliance with their notification obligations. Further, the applicable legal framework fails to guarantee the freedom to provide composite platform economy services that classify as two independent services of offline and online nature. The present article presents the main takeaways from recent judgments and highlights the structural differences between the legal regime applicable to ISS and that applicable to other kind of services, as well as their shortcomings. Digital Single Market – Regulation of the platform economy – Composite services – notification – online platform liability – e-commerce – Digital Services Act – Directive 2000/31 – Directive 2015/1535 – Directive 2006/123

Protecting Children’s Personal Data under General Data Protection Regulation and California Consumer Privacy Act in Relation to Information Society Services – European Perspective

The protection of children’s personal data as part of their right to privacy and information autonomy is extremely important. Year in, year out, the number of children using the Internet and services increases. This means that there need to be special tools and techniques established to protect children’s right to privacy. It is particularly important when children use services provided by companies after other, than local, jurisdiction. As they may not fully understand risk associated with exposing themselves in the Intranet, this is crucial for governmental authorities to ensure that children are protected. The aim of the article is to review current legislation protecting children’s personal data both in European Union and State of California. This particular state has been chosen for two reasons: firstly dozens of internet services providers are based in this state, secondly it would be difficult to ignore that this state was the first to introduce new data protection regulation which in many aspects brings US data protection law closer to European standards. Taking into consideration European Union regulation it is necessary to assess whether the current data protection regime in California answers adequacy requirements and whether data may be freely transferred to this territory.

The Belgian legislative proposal on ex parte urgent interlocutory injunctions for © infringement on the internet: a risky take on intermediaries

The enforcement of copyright and related rights on the internet remains one of the biggest challenges within the field of intellectual property. In that context, the Belgian administration has put forward a draft bill which provides for a new procedure for interlocutory injunctions specifically designed for large-scale infringements of copyright and related rights on the Internet. More specifically, the bill considers an ex parte procedure, whereby the apparent nature of the plaintiff's rights, the apparent and substantial nature of the infringement taking place on the Internet, and the balance of the interests at stake would be analysed by the judge before whom the case is brought. The aim is to enable the judge to order, within a short period of time, interim measures to end the infringement or to limit its consequences. The first specificity of this procedure is that, while it derogates from normally applicable procedures, it covers, as it stands, all intermediary information society service providers: not only ISPs but also for example cloud providers, payment intermediaries and domain name registrars. A further specificity lies in the fact that the procedure allows an injunction ordering potentially any type of technical measure, without limitation, against an intermediary, in a procedure which is ex-parte and derogates from normally applicable rules. Lastly, the draft bill considered the creation of a new department within the FPS Economy (ministry of economics) which (among other tasks), when authorised by the judge, will be able to specify the modalities of application of the measures imposed by the judge and to adapt them in order to guarantee their effectiveness (it being understood, of course, that this new department will not be able to modify the scope of the measures themselves, as decided by the court). This commentary examines certain articles of the draft bill in light of the principle of proportionality and of certain fundamental rights, such as the right to freedom of expression and the right to due process. In addition, it questions whether it is appropriate to legislate on this subject now, as the draft Digital Services Act (“DSA”) also addresses the issue. The draft bill indeed offers rightholders considerable procedural advantages (no prior notice, ex-parte and expedited procedure). This is not without risk, as any type of measure can be ordered against an intermediary. It is thus likely that this procedure will lead to erroneously blocking content, poorly calibrated measures, which will lead to blocking entire sites or servers or accounts “by accident”. Hence our commentary aims to offer concrete suggestions to remedy these risks and to prevent the unnecessary multiplying of litigation and flooding of courts, while still keeping its fundamental goals. Finally, this paper questions whether it is opportune to legislate now on this issue given that the proposal for a Digital Services Act or DSA is looking into the area. Further, the transposition of the EU Copyright in the Digital Single Market Directive already imposes new measures upon intermediaries for instance under its Article 17. These risks creating an influx of technical measures, whether imposed on intermediaries or on content sharing services.

Towards the Trustworthy AI

After decades of theoretical deliberations, the rapid development of advanced information technology has allowed machine learning as a first practical step towards artificial intelligence to enter widespread commercial and government use. The transition into a post-industrial, information society has revealed the value of data as an important resource whose processing is the basis of the new innovative information society services. The European Union has enacted several important regulations and directives in the recent past to protect the recognized fundamental rights of individuals and to regulate the obligations of service providers to ensure safe and secure processing. The Charter of Fundamental Rights as the legal basis of the European system of human rights contains significant checks and limitations to the effect and purpose of future EU AI regulation. Whenever and however this regulation is adopted, it will need to comply with and contain existing European legal standards regarding the fundamental rights of individuals in the EU. The European Commission’s ethical guidelines establish ethical principles based on the recognized fundamental rights that future AI systems need to adhere to in order to be recognized as trustworthy. The purpose of this paper is to present and analyse the mechanisms present in existing European regulations in the fields of data protection and information security and in the European Union documents regarding the future artificial intelligence regulation and to offer suggestions for future regulations. The research methodology includes a comparative analysis of available regulations and policy documents of the European Union, national laws, legal literature, and other sources.

La responsabilidad de las plataformas de economía colaborativa a la luz de la Ley 34/2002 de Servicios de la Sociedad de la Información

Collaborative economy platforms now play a fundamental role in the development of digital commercial relations and with the birth of this model of exchange, a series of legal questions have arisen that national and international legislators have preferred to approach cautiously. This paper examines the debate surrounding the liability of intermediaries through an analysis of the Law on Information Society Services and the dichotomy between the digital intermediary and the service provider, analysing the difficulties that exist in distinguishing between them and graduating their liability regime. With a view to the proposed Digital Services Regulation, the lack of current international legislation covering this casuistry means that it must be resolved by means of Private International Law rules to be subsumed in the domestic legislation of each country, although there are some “general” regimes of contractual and non-contractual liability, which will be the subject of study in this article.

The Country of Origin Principle and the Applicable Law for Obligations Related to the Benefit of Information Society Services

The article takes all of the abovementioned legacy of European Union Law into consideration while analysing them in depth through the prism of the principle in question and via careful comparisons of each of them as well. Particular attention is paid to the following issues, namely: the legal nature of the principle in question, its treaty sources, its scope of application, the principle in question in the light of the abovementioned directives – namely the Directive on audiovisual media services and the Directive on electronic commerce; and finally – relationships between provisions of the two aforementioned directives in the context of audiovisual media services on demand. While working on the text, all of the mentioned parts of the main subject turned out to be important enough to put them into separated sections of the text with their own individual headings. In the meantime, several interesting subject-related sentences by the European Court of Justice were also taken into account for a broadened pool of reference. To sum it all up: ultimately, the principle in question and its potential influence on the practical functioning of the European Union’s law and economy has been considered thoroughly.

La contratación a través de plataformas intermediarias en línea

Las plataformas intermediarias en línea se han convertido en protagonistas del desarrollo del mercado digital y generan retos normativos importantes. Las nuevas tecnologías han favorecido nuevas formas de intercambio en las que el operador de la plataforma adopta una posición especial y compleja. El trabajo se centra en el análisis de las plataformas que, siendo prestadores de servicios de la sociedad de la información, actúan como intermediarias (también en sentido material), favoreciendo las transacciones entre los usuarios de la plataforma que pueden ser iguales (peer to peer, P2P, Consumer to Consumer, C2C) o entre empresarios (Business to Business, B2B), o entre empresario y consumidor (Business to Consumer, B2C). Se genera una relación contractual compleja: contrato celebrado por los usuarios con la plataforma que les permite el acceso para poder lograr la interacción y, posteriormente, el contrato celebrado entre los usuarios.El objeto del presente trabajo es el diagnóstico y propuesta de solución de los problemas que suscita la contratación a través de plataformas intermediarias en línea. Tenemos nuevos operadores que no encajan exactamente en los modelos regulados en la legislación de comercio electrónico lo que plantea problemas para determinar su responsabilidad en las transacciones realizadas por los usuarios a través de las plataformas.La “horizontalidad” de las relaciones jurídicas entre pares que se producen en un mercado multilateral es la que genera retos normativos. El acervo comunitario en materia de protección de los consumidores está basado en un modelo de distribución en cadena: fabricante, mayorista, minorista y consumidor en una escala vertical. El desequilibrio entre las posiciones de las partes cuando el empresario es proveedor y el adquirente consumidor (B2C), sirvió de justificación para el diseño de un sistema contractual de protección del consumidor, propio de la contratación en masa. La economía de la plataforma deja obsoleto este esquema porque los bienes y servicios se intercambian entre pares y los particulares actúan como proveedores (prosumidores). Y en este caso ¿Cuál es la parte débil que hay que proteger?En la primera parte del trabajo se analiza el fenómeno de la contratación a través de plataformas intermediarias en línea, tradicionalmente vinculado a la denominada “economía colaborativa”. Después de las necesarias precisiones conceptuales se enumeran las características generales al mismo tiempo que se diagnostican los problemas que esta modalidad de contratación ocasiona. Los sistemas de reputación online y los problemas que ocasionan las reseñas falsas, la fijación de precios personalizados son algunos de los temas tratados.La segunda parte del trabajo se centra en los problemas que genera la estructura triangular de la contratación a través de plataformas. Se analiza la relación entre los usuarios y el operador de la plataforma, los derechos y obligaciones de las partes, así como los contratos entre los usuarios entre sí en los que el operador de la plataforma no es parte, pero interviene de forma activa. El trabajo concluye con unas propuestas de reforma legales que favorezcan la transparencia en esta modalidad de contratación y aclaren el régimen de responsabilidad del operador de la plataforma.

The Digital Services Act Package: Reflections on the EU Commission’s Policy Options

The forthcoming Digital Services Act package (DSA) is a legislative initiative to regulate online digital platforms, including online marketplaces, social media platforms, search engines, video gaming platforms and other information society services and internet service providers.As the first major piece of legislation for the sector since the e-Commerce Directive of 2000, it will define what the internet will be for years to come and impact internet governance not only in Europe, but globally.In addition to general rules applicable to all platforms, specific obligations will apply to ‘very large online platforms’ or ‘gatekeepers’.The initiative comes at the right time: COVID-19 is making obvious how much citizens, workers, consumers and businesses depend on digital services and online digital platforms.Online digital platforms enable web-based jobs or digital labour. This key aspect is not covered by the DSA package, it will be addressed through an ‘enhanced framework’ in 2021. Given the negative impact of platform work on labour conditions, security and worker protection, the DSA should not remain blind to the responsibilities platforms have towards the people they employ and leave this issue for later.

The Case of Google ‘Snippets’: An IP Wrong that Competition Law Cannot Fix

Digitization of the news industry has increasingly stressed the revenue generation of publishers. While there is unanimity on the need for policy intervention to ensure the viability of publishers in the digitized world, choosing the correct policy tool is critical. With the objective of ensuring adequate and equitable incentives to publishers, the EU created neighboring rights in ‘snippets’, expecting information society service providers to seek licenses from publishers against monetary remuneration for using their works. Contrary to the expectation, however, Google, the dominant search engine, refused to use ‘snippets’ unless provided for free. This brought claims of abuse of dominance against Google. This paper breaks this scenario into two parts: it first shows, by referring to the design rights in spare parts debate in the EU, that the creation of neighboring rights in ‘snippets’ was unjustified in the absence of any market failure triggered by free-riding; subsequently, by analyzing the contrary stances of the German and the French competition authorities, it shows the limited ability of competition law to hold Google’s behavior illegal. Thus, the paper shows that the choice of policy tool to incentivize publishers by creating a new IP right was flawed.

The New Related Right for Press Publishers: What Way Forward?

Following the entry into force of Directive 2019/790/EU, a new related right has been added to the EU catalogue (Article 15). Indeed, a new right has been introduced in favour of press publishers for the reproduction and making available to the public of press publications in respect of online uses by information society service providers. The main aim of the EU reform is to support the sustainability of the press by creating a level playing field between digital services and press publishers, where the latter may find a way to recoup a return on their investments. This objective is clearly reflected in the construction of the right, which is inherently unbalanced regarding opposing rights and interests, thus risking to (further) fragmenting the consistency of EU copyright and related rights system. After a necessary review of the interests at stake, the chapter discusses the main concerns raised by the introduction of the right at the EU level. Then it moves to the analysis of the effects of the first national implementation of Article 15 on the competitive dynamics between press publishers and digital platforms. The chapter concludes with a glimpse into some conceivable ways forward to avoid inconsistencies and unintended consequences, while at the same time (possibly) fostering the fairness and the well-functioning of copyright-focused markets.

Asociación Profesional Elite Taxi vs Uber Systems Spain SL: Differences between the Internet Platform and the Transport Service

Judgment of 20 December 2017, Asociación Profesional Elite Taxi vs Uber Systems Spain SL, C-434/15, EU:C:2017:981. In the commented judgment, the CoJ resolved the dispute initiated by a professional taxi drivers’ association in Barcelona. The CoJ aimed to determine whether the activity carried out by Uber falls within the scope of the Directive 2000/31/EC1 and Directive 2006/123/EC2 and whether this activity can be categorised as ‘service in the field of transport’ within the meaning of Art. 58(1) TFEU. The CoJ examined whether the services provided by Uber can be classified as transport services, information society services or a combination of both. Establishing the classification allows to determine the conditions of carrying out the activity by Uber. Uber is an internet platform created by Uber Technologies Inc., company based in San Francisco. In EU, Uber platform is managed by Uber BV, company under Dutch law,...

Reconciling new technologies with existing EU law – Online platforms as information society service providers

Reconciling new technologies with existing EU law – Online platforms as information society service providers