Pub Date : 2021-02-10DOI: 10.1080/13600869.2021.1885108
K. Ziolkowska
ABSTRACT According to the classical understanding of the state sovereignty, a state is sovereign when it enjoys full control over its territory, sole authority internally, and independence of outside authority. Those aspects of control and authority will further manifest themselves in law making and law enforcing. Blockchain with its distinctive characteristics can challenge state sovereignty thus seen. Its most salient feature is ability to distribute control and authority over data. Having potential to facilitate transactions without middlemen and render some legal institutions redundant, blockchain carries with itself both great promises and chilling risks for public institutions. Meanwhile, countries implement various policies related to this technology, positioning themselves among passive observers or active regulators; as outsiders or as early adopters. The argument made in this article is that, regardless of the adopted approach, blockchain poses systemic challenges to the sovereignty of states. The article examines fundamental features of blockchain that combined cause the inherent distribution of control within a blockchain environment which, in turn, challenge traditional law making and law enforcement. Finally, I make a point that those features make blockchain equally as ground-breaking as incoherent with the legal and practical functioning of sovereign states and, therefore, some trade-offs are imperative.
{"title":"Distributing authority – state sovereignty in the age of blockchain","authors":"K. Ziolkowska","doi":"10.1080/13600869.2021.1885108","DOIUrl":"https://doi.org/10.1080/13600869.2021.1885108","url":null,"abstract":"ABSTRACT According to the classical understanding of the state sovereignty, a state is sovereign when it enjoys full control over its territory, sole authority internally, and independence of outside authority. Those aspects of control and authority will further manifest themselves in law making and law enforcing. Blockchain with its distinctive characteristics can challenge state sovereignty thus seen. Its most salient feature is ability to distribute control and authority over data. Having potential to facilitate transactions without middlemen and render some legal institutions redundant, blockchain carries with itself both great promises and chilling risks for public institutions. Meanwhile, countries implement various policies related to this technology, positioning themselves among passive observers or active regulators; as outsiders or as early adopters. The argument made in this article is that, regardless of the adopted approach, blockchain poses systemic challenges to the sovereignty of states. The article examines fundamental features of blockchain that combined cause the inherent distribution of control within a blockchain environment which, in turn, challenge traditional law making and law enforcement. Finally, I make a point that those features make blockchain equally as ground-breaking as incoherent with the legal and practical functioning of sovereign states and, therefore, some trade-offs are imperative.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"4 11","pages":"116 - 130"},"PeriodicalIF":0.0,"publicationDate":"2021-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72609088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-02-09DOI: 10.1080/13600869.2021.1879594
V. Ooi
ABSTRACT As digital goods gain traction and technological advancements that enable and facilitate piracy develop, technological protection measures (‘TPMs’) have become indispensable tools for content-producers to safeguard their intellectual property (‘IP’) rights. Like other intellectual property laws, there is an inherent tension in TPM protection provisions between safeguarding the content-producers’ IP rights and the consumers’ collective legitimate right to access works. TPM protection may be overly broad in two major ways. Firstly, by an inefficacious transposition of the rights and authority requirements, which stems from Article 11 of the WIPO Copyright Treaty. Secondly, by an overly-broad protection of TPMs in domestic legislation. This article argues that circumventing TPMs should only be prohibited where this would also involve an infringement of existing IP rights. The first part of the article discusses the proper ambit of TPM protection provisions by comparing the scope of such laws in Australia and Singapore, concluding that the Singapore position effectively protects the content-producer's IP rights without extending the de facto enforceability of TPM rights. The second part considers the practical implications of TPMs, including how they affect parallel imports and related practices such as geoblocking, virtual private networks (‘VPNs’) and streaming.
{"title":"Licence to lock: the overextension of technological protection measures","authors":"V. Ooi","doi":"10.1080/13600869.2021.1879594","DOIUrl":"https://doi.org/10.1080/13600869.2021.1879594","url":null,"abstract":"ABSTRACT As digital goods gain traction and technological advancements that enable and facilitate piracy develop, technological protection measures (‘TPMs’) have become indispensable tools for content-producers to safeguard their intellectual property (‘IP’) rights. Like other intellectual property laws, there is an inherent tension in TPM protection provisions between safeguarding the content-producers’ IP rights and the consumers’ collective legitimate right to access works. TPM protection may be overly broad in two major ways. Firstly, by an inefficacious transposition of the rights and authority requirements, which stems from Article 11 of the WIPO Copyright Treaty. Secondly, by an overly-broad protection of TPMs in domestic legislation. This article argues that circumventing TPMs should only be prohibited where this would also involve an infringement of existing IP rights. The first part of the article discusses the proper ambit of TPM protection provisions by comparing the scope of such laws in Australia and Singapore, concluding that the Singapore position effectively protects the content-producer's IP rights without extending the de facto enforceability of TPM rights. The second part considers the practical implications of TPMs, including how they affect parallel imports and related practices such as geoblocking, virtual private networks (‘VPNs’) and streaming.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"29 1","pages":"270 - 287"},"PeriodicalIF":0.0,"publicationDate":"2021-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74284317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-02-08DOI: 10.1080/13600869.2022.2030032
Pankhudi Khandelwal, Shilpi Bhattacharya
ABSTRACT One of the challenges before competition law today is to develop criteria for market definition in platform markets. The traditional tests for market definition do not serve to identify the boundaries of competition in multi-sided platforms due to the complexity of competitive constraints operating on each side of the platform. An important question that arises is whether platforms should be defined as one or separate markets on each side. The Competition Commission of India (CCI) has generally defined platform markets from one side only. However, academic literature suggests that certain platform markets should be defined from both sides of the market. This paper argues that the CCI should use a framework of market definition that accounts for interdependencies on both sides of the platform and provides clearer guidance for when platforms may be defined from one or both sides. Applying this framework, the paper finds that the CCI did not account for certain sides of Google’s search platform. This prevented the CCI from evaluating the harm to third party content providers from Google’s conduct. Further, by overlooking the multisided nature of Oyo’s platform in its market definition, the CCI disregarded the sources of power and competition in this market.
{"title":"Judging a book by its cover?: analysing the Indian approach to defining platform markets","authors":"Pankhudi Khandelwal, Shilpi Bhattacharya","doi":"10.1080/13600869.2022.2030032","DOIUrl":"https://doi.org/10.1080/13600869.2022.2030032","url":null,"abstract":"ABSTRACT One of the challenges before competition law today is to develop criteria for market definition in platform markets. The traditional tests for market definition do not serve to identify the boundaries of competition in multi-sided platforms due to the complexity of competitive constraints operating on each side of the platform. An important question that arises is whether platforms should be defined as one or separate markets on each side. The Competition Commission of India (CCI) has generally defined platform markets from one side only. However, academic literature suggests that certain platform markets should be defined from both sides of the market. This paper argues that the CCI should use a framework of market definition that accounts for interdependencies on both sides of the platform and provides clearer guidance for when platforms may be defined from one or both sides. Applying this framework, the paper finds that the CCI did not account for certain sides of Google’s search platform. This prevented the CCI from evaluating the harm to third party content providers from Google’s conduct. Further, by overlooking the multisided nature of Oyo’s platform in its market definition, the CCI disregarded the sources of power and competition in this market.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"21 1","pages":"330 - 351"},"PeriodicalIF":0.0,"publicationDate":"2021-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83222463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-27DOI: 10.1080/13600869.2020.1838187
Huong Ha, Hui Shan Loh, Hui Ting Evelyn Gay, P. Yeap
ABSTRACT E-tailing is an important feature of e-commerce in general. This is particularly true for the Dell Corporation (Dell). Literature on Dell generally focuses on its competitive features in direct sales, products and services, overlooking its e-consumer protection. This paper aims to address this gap by reviewing the information available on Dell’s (Australia) website and secondary data to examine: (i) the current e-consumer protection regulatory framework, using Australia as a case study; (ii) consumer protection by Dell; (iii) consumer experiences with Dell; and (iv) implications for theories and practices concerning e-consumer protection. Overall, Dell has adhered to its corporate governance to comply with the existing legal framework for customer protection; however, less consistent with consumer redress. The study proposes that better treatment and education of consumer rights may help e-tailers retain existing customers and attract new customers. A blend of regulatory improvement and changes in stakeholders’ mindset and behaviour are essential to enhance e-consumer protection. Proper compliance measures, including both regulatory and non-regulatory, are required to protect the interests of both e-tailers and e-consumers.
{"title":"Consumer protection in E-tailing computer sales: a case study of Dell","authors":"Huong Ha, Hui Shan Loh, Hui Ting Evelyn Gay, P. Yeap","doi":"10.1080/13600869.2020.1838187","DOIUrl":"https://doi.org/10.1080/13600869.2020.1838187","url":null,"abstract":"ABSTRACT E-tailing is an important feature of e-commerce in general. This is particularly true for the Dell Corporation (Dell). Literature on Dell generally focuses on its competitive features in direct sales, products and services, overlooking its e-consumer protection. This paper aims to address this gap by reviewing the information available on Dell’s (Australia) website and secondary data to examine: (i) the current e-consumer protection regulatory framework, using Australia as a case study; (ii) consumer protection by Dell; (iii) consumer experiences with Dell; and (iv) implications for theories and practices concerning e-consumer protection. Overall, Dell has adhered to its corporate governance to comply with the existing legal framework for customer protection; however, less consistent with consumer redress. The study proposes that better treatment and education of consumer rights may help e-tailers retain existing customers and attract new customers. A blend of regulatory improvement and changes in stakeholders’ mindset and behaviour are essential to enhance e-consumer protection. Proper compliance measures, including both regulatory and non-regulatory, are required to protect the interests of both e-tailers and e-consumers.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"5 1","pages":"246 - 269"},"PeriodicalIF":0.0,"publicationDate":"2020-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85344033","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-24DOI: 10.1080/13600869.2020.1820684
K. Kariyawasam, Rangika Palliyaarachchi
ABSTRACT Copyright protection has always been a significant factor in the ongoing viability of making music for money. Music is valueless without the talented people who convert abstract musical compositions into performances that we hear and enjoy. This article examines how copyright law recognises the rights of performers who typically contribute to a music artefact. It then scrutinises the development of performers’ rights primarily in Australia, while making a comparison with the UK and New Zealand. It is suggested in this article that a gap exists in copyright law that results in performers not having rights that are equivalent to those of composers or producers.
{"title":"The song would be nothing without someone to sing it: copyright and performers’ rights in music","authors":"K. Kariyawasam, Rangika Palliyaarachchi","doi":"10.1080/13600869.2020.1820684","DOIUrl":"https://doi.org/10.1080/13600869.2020.1820684","url":null,"abstract":"ABSTRACT Copyright protection has always been a significant factor in the ongoing viability of making music for money. Music is valueless without the talented people who convert abstract musical compositions into performances that we hear and enjoy. This article examines how copyright law recognises the rights of performers who typically contribute to a music artefact. It then scrutinises the development of performers’ rights primarily in Australia, while making a comparison with the UK and New Zealand. It is suggested in this article that a gap exists in copyright law that results in performers not having rights that are equivalent to those of composers or producers.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"28 1","pages":"222 - 245"},"PeriodicalIF":0.0,"publicationDate":"2020-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79142708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.1080/13600869.2019.1588844
Esther Keymolen, Astrid Voorwinden
ABSTRACT This article focuses on the smart city as a political place. It analyses how both the technologies and the ideas smart cities are built on, oust trust and the rule of law as two important conditions for the city as a thriving political community. In particular, three challenges to the city as a political place are identified: de-subjectivation, invisibility, and a neo-liberal value shift. In order to address these challenges, we introduce the term ‘negotiation’ as a new guiding principle to the use of smart technologies in cities. Through negotiation, we underline some necessary steps to re-subjectify citizens and to put the acceptance of vulnerability and transparency at the centre of our thinking and evaluation of the smart city. This article concludes that the current focus on participation and citizen-centric smart city projects is not sufficient to build and contribute to a genuine political community and that a re-evaluation of active citizenship in the smart city context is therefore needed.
{"title":"Can we negotiate? Trust and the rule of law in the smart city paradigm","authors":"Esther Keymolen, Astrid Voorwinden","doi":"10.1080/13600869.2019.1588844","DOIUrl":"https://doi.org/10.1080/13600869.2019.1588844","url":null,"abstract":"ABSTRACT This article focuses on the smart city as a political place. It analyses how both the technologies and the ideas smart cities are built on, oust trust and the rule of law as two important conditions for the city as a thriving political community. In particular, three challenges to the city as a political place are identified: de-subjectivation, invisibility, and a neo-liberal value shift. In order to address these challenges, we introduce the term ‘negotiation’ as a new guiding principle to the use of smart technologies in cities. Through negotiation, we underline some necessary steps to re-subjectify citizens and to put the acceptance of vulnerability and transparency at the centre of our thinking and evaluation of the smart city. This article concludes that the current focus on participation and citizen-centric smart city projects is not sufficient to build and contribute to a genuine political community and that a re-evaluation of active citizenship in the smart city context is therefore needed.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"35 1","pages":"233 - 253"},"PeriodicalIF":0.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90796366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-15DOI: 10.1080/13600869.2020.1794569
Audrey Guinchard
ABSTRACT With the objective of controlling the spread of the coronavirus, the UK has decided to create and, in early May 2020, was live testing a digital contact tracing app, under the direction of NHS X, a joint unit of NHS England and NHS Improvement. In parallel, NHS X has been building the backend datastore, contracting a number of companies. While the second iteration of the app should integrate a more privacy-friendly design, the project has continued to be criticised for its potential to increase government surveillance beyond the pandemic and for purposes other than tracing the spread of the virus. While I share these concerns, I argue that equal attention should be given to the collaboration between NHS X and the private sector because it has the potential to magnify the illegal collection and sharing of data. Systematic enforcement of the General Data Protection Regulation (GDPR) in the private sector would disrupt the current dynamics hidden in plain sight.
为了控制冠状病毒的传播，英国决定在NHS X的指导下创建并于2020年5月初对数字接触者追踪应用程序进行现场测试，NHS X是NHS英格兰和NHS改进的联合单位。与此同时，NHS X一直在构建后端数据存储，并与许多公司签订了合同。虽然该应用程序的第二次迭代应该集成更隐私友好的设计，但该项目继续受到批评，因为它有可能在大流行之外增加政府监控，并且用于追踪病毒传播以外的目的。虽然我也有这些担忧，但我认为应该同样关注NHS X与私营部门之间的合作，因为它有可能扩大非法收集和共享数据。《通用数据保护条例》(General Data Protection Regulation, GDPR)在私营部门的系统执行将破坏当前隐藏在人们视线中的动态。
{"title":"Our digital footprint under Covid-19: should we fear the UK digital contact tracing app?","authors":"Audrey Guinchard","doi":"10.1080/13600869.2020.1794569","DOIUrl":"https://doi.org/10.1080/13600869.2020.1794569","url":null,"abstract":"ABSTRACT With the objective of controlling the spread of the coronavirus, the UK has decided to create and, in early May 2020, was live testing a digital contact tracing app, under the direction of NHS X, a joint unit of NHS England and NHS Improvement. In parallel, NHS X has been building the backend datastore, contracting a number of companies. While the second iteration of the app should integrate a more privacy-friendly design, the project has continued to be criticised for its potential to increase government surveillance beyond the pandemic and for purposes other than tracing the spread of the virus. While I share these concerns, I argue that equal attention should be given to the collaboration between NHS X and the private sector because it has the potential to magnify the illegal collection and sharing of data. Systematic enforcement of the General Data Protection Regulation (GDPR) in the private sector would disrupt the current dynamics hidden in plain sight.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"75 1","pages":"84 - 97"},"PeriodicalIF":0.0,"publicationDate":"2020-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75351136","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-13DOI: 10.1080/13600869.2020.1792687
Ioan-Radu Motoarcă
ABSTRACT This essay proposes a way of dealing with the strict liability of Internet sellers of other manufacturers’ products, such as Amazon under its ‘Fulfillment by Amazon’ program. I discuss and reject two approaches to the problem that have been proposed by the courts, and advance a view according to which the relevant inquiry is whether Internet intermediaries such as Amazon could have prevented a defective product from reaching the US market. This view accounts in a satisfactory manner for the notion of responsibility that is at the core of US strict products liability law, and avoids the pitfalls of alternative policies. However, since this view also entails a de facto quasi-immunity to lawsuits for Internet intermediaries in many cases, safeguards to that quasi-immunity are also addressed. While the essay focuses on US law, the principles and policies under discussion should be applicable in other jurisdictions as well.
{"title":"A market-based approach to internet intermediary strict products liability","authors":"Ioan-Radu Motoarcă","doi":"10.1080/13600869.2020.1792687","DOIUrl":"https://doi.org/10.1080/13600869.2020.1792687","url":null,"abstract":"ABSTRACT This essay proposes a way of dealing with the strict liability of Internet sellers of other manufacturers’ products, such as Amazon under its ‘Fulfillment by Amazon’ program. I discuss and reject two approaches to the problem that have been proposed by the courts, and advance a view according to which the relevant inquiry is whether Internet intermediaries such as Amazon could have prevented a defective product from reaching the US market. This view accounts in a satisfactory manner for the notion of responsibility that is at the core of US strict products liability law, and avoids the pitfalls of alternative policies. However, since this view also entails a de facto quasi-immunity to lawsuits for Internet intermediaries in many cases, safeguards to that quasi-immunity are also addressed. While the essay focuses on US law, the principles and policies under discussion should be applicable in other jurisdictions as well.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"33 1","pages":"204 - 221"},"PeriodicalIF":0.0,"publicationDate":"2020-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90820678","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-13DOI: 10.1080/13600869.2020.1784567
James Griffin
ABSTRACT Law is becoming increasingly digital in nature, and the State is increasingly using digital technology for the purposes of physical legal enforcement. This paper argues that this poses unique issues for legal regulation of cultural content, changing the relationship between the individual and the State. The paper focuses on laws in the UK and China to demonstrate how these issues have arisen, and what the potential consequences of this change could be. The paper culminates in arguing that legislatures and courts should be required to explicitly consider how digital technology influences, in a given law or case, the enforcement of law.
{"title":"The enforcement of laws regulating digital cultural content: a proposal","authors":"James Griffin","doi":"10.1080/13600869.2020.1784567","DOIUrl":"https://doi.org/10.1080/13600869.2020.1784567","url":null,"abstract":"ABSTRACT Law is becoming increasingly digital in nature, and the State is increasingly using digital technology for the purposes of physical legal enforcement. This paper argues that this poses unique issues for legal regulation of cultural content, changing the relationship between the individual and the State. The paper focuses on laws in the UK and China to demonstrate how these issues have arisen, and what the potential consequences of this change could be. The paper culminates in arguing that legislatures and courts should be required to explicitly consider how digital technology influences, in a given law or case, the enforcement of law.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"67 1","pages":"70 - 83"},"PeriodicalIF":0.0,"publicationDate":"2020-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88418323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-13DOI: 10.1080/13600869.2020.1792035
Clara Iglesias Keller
ABSTRACT This paper offers an institutional assessment of the intermediary liability system currently operative in Brazil. According to article 19 of the Marco Civil, content sharing platforms shall only be held liable for third party infringement if they fail to act upon it under a court ruling. This is a court-centred system, and as such, it is praised for its benefits to freedom of expression, the assumption being that such a safe harbour should create fewer incentives for intermediaries to overblock content. The goal of this paper is to analyse this regulatory choice beyond the freedom of expression trade-off, considering the institutional characteristics of the judicial decision-making process and how they can affect the broader online content regulation context. It builds on the literature dedicated to the relationship between judicialisation and public policies in order to accrue the practical implications of the judiciary’s legitimacy, institutional capacities and selectivity for the aforementioned governance system.
{"title":"Policy by judicialisation: the institutional framework for intermediary liability in Brazil","authors":"Clara Iglesias Keller","doi":"10.1080/13600869.2020.1792035","DOIUrl":"https://doi.org/10.1080/13600869.2020.1792035","url":null,"abstract":"ABSTRACT This paper offers an institutional assessment of the intermediary liability system currently operative in Brazil. According to article 19 of the Marco Civil, content sharing platforms shall only be held liable for third party infringement if they fail to act upon it under a court ruling. This is a court-centred system, and as such, it is praised for its benefits to freedom of expression, the assumption being that such a safe harbour should create fewer incentives for intermediaries to overblock content. The goal of this paper is to analyse this regulatory choice beyond the freedom of expression trade-off, considering the institutional characteristics of the judicial decision-making process and how they can affect the broader online content regulation context. It builds on the literature dedicated to the relationship between judicialisation and public policies in order to accrue the practical implications of the judiciary’s legitimacy, institutional capacities and selectivity for the aforementioned governance system.","PeriodicalId":53660,"journal":{"name":"International Review of Law, Computers and Technology","volume":"57 1","pages":"185 - 203"},"PeriodicalIF":0.0,"publicationDate":"2020-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89111389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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