This article critiques the apparently complementary nature of the platform immunities of the earl... more This article critiques the apparently complementary nature of the platform immunities of the early 2000s and the regulated self-regulation of the EU Digital Services Act 2022 [DSA] and the UK Online Safety Act 2023 [OSA]. Taking toxic recommender algorithms as the regulated target, the paper argues that although the DSA/OSA’s regulatory regimes seek to fill the legal vacuum created by these immunities (exempting platforms from liabilities for third party material published on their domains), they cannot compensate for the liability regimes foreclosed by the immunities and are in fact undermined by their continuing presence. Whilst the DSA/OSA’s regimes recognise platforms as active participants in, and powerful shapers of, the online content sphere, notably via their recommender algorithms, the immunities remain stuck in the early view of the same platforms as passive providers of neutral infrastructure (including their algorithms) and so as innocent messengers. Thus the immunities continue to allow platforms to adopt the toxic-but-profitable algorithms that the DSA/OSA seek to restrain. By the same token, statutory duties and administrative oversight can neither replace an individual’s right to redress nor the deliberative public engagement engendered by civil or criminal court cases. The article concludes that the tension between the two regimes may be resolved by restricting the immunities to truly neutral platforms, those not substantially invested in the content they are meant to regulate. For all other platforms the DSA/OSA self-regulatory regimes and standard liabilities could and should run in parallel.
This is a draft which has subsequently been amended and published as Chapter 3 in Rowland, Kohl a... more This is a draft which has subsequently been amended and published as Chapter 3 in Rowland, Kohl and Charlesworth, Information Technology Law (5th ed, Taylor and Francis, 2016).
The scale of inflammatory, divisive, false and harmful online content has prompted much soul-sear... more The scale of inflammatory, divisive, false and harmful online content has prompted much soul-searching about its sources, causes and possible responses. This has brought the sweeping immunity in section 230 of the Communication Decency Act (intended to empower platforms as moderators) under intense scrutiny. Far from providing relief, it appears to have turned platforms into a source of the problem. This Article offers a fresh take on section 230, which is - despite its apparent commonplaceness - shown to be an extraordinary legal intervention as it gives important actors, otherwise key to controlling a space, a “carte blanche immunity for wrongful conduct.” That extraordinariness requires an explanation going beyond standard arguments about giving young internet companies some “breathing space” or removing disincentives for content moderation. The discussion starts with the proposition that an immunity entails self-governance, not as a matter of cause and effect, but in purely analytical term being immune means to self-govern within the scope of the immunity, that is to act without legal accountability. Building on the basic understanding of an immunity as self-governance, the Article traces the provenance of section 230 and its sweeping application to online platforms through three very different, but complementary, legal contexts: first, within the landscape of immunities as extraordinary legal devices often employed in support of governing activity; second, within the conception of the corporation as a self-governing institution embedded in immunities and impunities; and, third, within the constitutional framework and its capacity to recognise the “sovereignty-sharing” arrangement of government and platform in cyberspace. The Article’s overarching argument is that section 230 taps into the governing propensity of platforms not just as intermediaries or gatekeepers of online content, but as corporate actors which are, it is argued, inherently immune/self-governing actors with a long-standing history of “sovereignty-sharing” with government. Through this corporate prism the extraordinary “sovereign” role of platforms in cyberspace becomes intelligible. Normatively, the argument recasts platforms as hybrid private-public actors, consistent with the body of corporate scholarship, which postulates the sui generis nature of the corporation as a neither quite private nor quite public. Section 230 intensifies this argument in the case of online platforms. Repositioning online platforms as sitting “on the fence” of the private-public constitutional divide then provides the foundation for asking how constitutional restraints applicable to government may be adapted to ensure platform accountability.
Interdisciplinary Workshop on ‘Data-Driven Personalisation in Markets, Politics and Law' on 2... more Interdisciplinary Workshop on ‘Data-Driven Personalisation in Markets, Politics and Law' on 28 June 2019 Southampton Law School will be hosting an interdisciplinary workshop on the topic of ‘Data-Driven Personalisation in Markets, Politics and Law' on Friday 28 June 2019, which will explore the pervasive and growing phenomenon of ‘personalisation’ – from behavioural advertising in commerce and micro-targeting in politics, to personalised pricing and contracting and predictive policing and recruitment. This is a huge area which touches upon many legal disciplines as well as social science concerns and, of course, computer science and mathematics. Within law, it goes well beyond data protection law, raising questions for criminal law, consumer protection, competition and IP law, tort law, administrative law, human rights and anti-discrimination law, law and economics as well as legal and constitutional theory. We’ve written a position paper, https://eprints.soton.ac.uk/428082/...
The most fascinating and profitable subject of predictive algorithms is the human actor. Analysin... more The most fascinating and profitable subject of predictive algorithms is the human actor. Analysing big data through learning algorithms to predict and pre-empt individual decisions gives a powerful tool to corporations, political parties and the state. Algorithmic analysis of digital footprints, as an omnipresent form of surveillance, has already been used in diverse contexts: behavioural advertising, personalised pricing, political micro-targeting, precision medicine, and predictive policing and prison sentencing. This volume brings together experts to offer philosophical, sociological, and legal perspectives on these personalised data practices. It explores common themes such as choice, personal autonomy, equality, privacy, and corporate and governmental efficiency against the normative frameworks of the market, democracy and the rule of law. By offering these insights, this collection on data-driven personalisation seeks to stimulate an interdisciplinary debate on one of the most pervasive, transformative, and insidious socio-technical developments of our time.
Research Handbook on International Law and Cyberspace , 2021
Jurisdiction - or more precisely the entitlement to regulate a transnational event, that is to ma... more Jurisdiction - or more precisely the entitlement to regulate a transnational event, that is to make, apply and enforce laws in respect of it - continues to be a live issue within the arena of network regulation and to evolve in line with wider regulatory trends. The controversy in the online environment has shifted away from the question of whether and, if so, when a State may apply its defamation, privacy, contract and intellectual property law, or criminal and regulatory law on eg. obscenity, pharmaceutical licencing and gambling to a global online activity. Now the focus is on more pragmatic concerns and in particularly, on the dominant tech platforms and their gatekeeping and data collection capacities, and when and how they may be co-opted by into the business of territorial regulation. This chapter selectively traces jurisdictional developments as constitutive of these new regulatory trends in network society, set against customary international law on legislative, adjudicative and executive jurisdiction. It posits that the authority of the territorial State is after all not weakened by the rise of a global network society, and might even be strengthened by it.
This collection investigates the sharpening conflict between the nation state and the internet th... more This collection investigates the sharpening conflict between the nation state and the internet through a multidisciplinary lens. It challenges the idea of an inherently global internet by examining its increasing territorial fragmentation and, conversely, the notion that for states online law and order is business as usual. Cyberborders based on national law are not just erected around China's online community. Cultural, political and economic forces, as reflected in national or regional norms, have also incentivised virtual borders in the West. The nation state is asserting itself. Yet, there are also signs of the receding role of the state in favour of corporations wielding influence through de-facto control over content and technology. This volume contributes to the online governance debate by joining ideas from law, politics and human geography to explore internet jurisdiction and its overlap with topics such as freedom of expression, free trade, democracy, identity and cart...
The Internet raises many challenges to existing laws. However, there has not been much attention ... more The Internet raises many challenges to existing laws. However, there has not been much attention devoted to the issue of remedies. In this new digital environment we may find that extraordinary remedies such as an injunction, may need to be re-examined and reassessed. This article looks at some of the policies and practical implications involved in deciding the most appropriate remedies for a Digital Age.
The potential of the Internet to artificially move residence is dependent on the reliance on a fo... more The potential of the Internet to artificially move residence is dependent on the reliance on a formal rather than substantial nexus between the individual or entity and the territory in defining residence. While the Internet per se does not create substantial opportunities to artificially move residence of an essentially local business, the opportunities for global collaborative ventures created by the Internet would make the issue of 'residence' of a company or business more difficult to decide.
Oxford Handbook of Law, Regulation and Technology, 2017
This chapter documents the extreme stresses that cyberspace applies to state law by examining how... more This chapter documents the extreme stresses that cyberspace applies to state law by examining how private international law, or conflict of laws, has responded to the online global world. This highlights both the penetration of globalization into the 'private' sphere and the strongly 'public' or collective political nature of much of the 'private' ordering through national law. The chapter shows that the nation state is asserting itself against the very phenomenon-globalization (through cyberspace)-that threatens its existence, and does not shy away from accepting the fragmentation of this global cyberspace along traditional political boundaries as collateral damage to its own survival. Yet, the frequent appeal to international human rights normativity in recent conflicts jurisprudence suggests an awareness of the unsuitability and illegitimacy of nation state law for the global online world.
The almost two decade-long bonanza of civil litigation concerning gross human rights viol... more The almost two decade-long bonanza of civil litigation concerning gross human rights violations committed by corporations under the US Alien Tort Statute 1789 was scaled back by the US Supreme Court in Kiobel v Royal Dutch Petroleum in April 2013. The court restricted the territorial reach of human rights claims against transnational corporations by holding that the presumption against extra-territoriality applied to the Act. Thus Shell, the Dutch/British defendant, and the role it played in the brutal suppression by the Nigerian military of the Ogoni peoples' protest movement against the environmental devastation caused by oil exploration, lay outside the territorial scope of the Act. Legal accountability must lie in a State with a stronger connection with the dispute. While this article briefly engages with the Supreme Court decision, its main focus is on the attitude of Western governments to the corporate human rights litigation under the ATS as articulated in their amicus briefs. In these briefs they objected to the statute's excessive extraterritoriality and horizontal application of human rights to artificial non-State actors. In these two respects corporate ATS litigation created significant inroads into the conventional State-centric approach to human rights and thus provided an opportunity for more effective human rights enjoyment. This article tests the validity of the objections of Western governments to corporate human rights obligations under the ATS against the norms of public international law and against the substantive demands arising out of the shortfalls of the international human rights enforcement.
This article critiques the apparently complementary nature of the platform immunities of the earl... more This article critiques the apparently complementary nature of the platform immunities of the early 2000s and the regulated self-regulation of the EU Digital Services Act 2022 [DSA] and the UK Online Safety Act 2023 [OSA]. Taking toxic recommender algorithms as the regulated target, the paper argues that although the DSA/OSA’s regulatory regimes seek to fill the legal vacuum created by these immunities (exempting platforms from liabilities for third party material published on their domains), they cannot compensate for the liability regimes foreclosed by the immunities and are in fact undermined by their continuing presence. Whilst the DSA/OSA’s regimes recognise platforms as active participants in, and powerful shapers of, the online content sphere, notably via their recommender algorithms, the immunities remain stuck in the early view of the same platforms as passive providers of neutral infrastructure (including their algorithms) and so as innocent messengers. Thus the immunities continue to allow platforms to adopt the toxic-but-profitable algorithms that the DSA/OSA seek to restrain. By the same token, statutory duties and administrative oversight can neither replace an individual’s right to redress nor the deliberative public engagement engendered by civil or criminal court cases. The article concludes that the tension between the two regimes may be resolved by restricting the immunities to truly neutral platforms, those not substantially invested in the content they are meant to regulate. For all other platforms the DSA/OSA self-regulatory regimes and standard liabilities could and should run in parallel.
This is a draft which has subsequently been amended and published as Chapter 3 in Rowland, Kohl a... more This is a draft which has subsequently been amended and published as Chapter 3 in Rowland, Kohl and Charlesworth, Information Technology Law (5th ed, Taylor and Francis, 2016).
The scale of inflammatory, divisive, false and harmful online content has prompted much soul-sear... more The scale of inflammatory, divisive, false and harmful online content has prompted much soul-searching about its sources, causes and possible responses. This has brought the sweeping immunity in section 230 of the Communication Decency Act (intended to empower platforms as moderators) under intense scrutiny. Far from providing relief, it appears to have turned platforms into a source of the problem. This Article offers a fresh take on section 230, which is - despite its apparent commonplaceness - shown to be an extraordinary legal intervention as it gives important actors, otherwise key to controlling a space, a “carte blanche immunity for wrongful conduct.” That extraordinariness requires an explanation going beyond standard arguments about giving young internet companies some “breathing space” or removing disincentives for content moderation. The discussion starts with the proposition that an immunity entails self-governance, not as a matter of cause and effect, but in purely analytical term being immune means to self-govern within the scope of the immunity, that is to act without legal accountability. Building on the basic understanding of an immunity as self-governance, the Article traces the provenance of section 230 and its sweeping application to online platforms through three very different, but complementary, legal contexts: first, within the landscape of immunities as extraordinary legal devices often employed in support of governing activity; second, within the conception of the corporation as a self-governing institution embedded in immunities and impunities; and, third, within the constitutional framework and its capacity to recognise the “sovereignty-sharing” arrangement of government and platform in cyberspace. The Article’s overarching argument is that section 230 taps into the governing propensity of platforms not just as intermediaries or gatekeepers of online content, but as corporate actors which are, it is argued, inherently immune/self-governing actors with a long-standing history of “sovereignty-sharing” with government. Through this corporate prism the extraordinary “sovereign” role of platforms in cyberspace becomes intelligible. Normatively, the argument recasts platforms as hybrid private-public actors, consistent with the body of corporate scholarship, which postulates the sui generis nature of the corporation as a neither quite private nor quite public. Section 230 intensifies this argument in the case of online platforms. Repositioning online platforms as sitting “on the fence” of the private-public constitutional divide then provides the foundation for asking how constitutional restraints applicable to government may be adapted to ensure platform accountability.
Interdisciplinary Workshop on ‘Data-Driven Personalisation in Markets, Politics and Law' on 2... more Interdisciplinary Workshop on ‘Data-Driven Personalisation in Markets, Politics and Law' on 28 June 2019 Southampton Law School will be hosting an interdisciplinary workshop on the topic of ‘Data-Driven Personalisation in Markets, Politics and Law' on Friday 28 June 2019, which will explore the pervasive and growing phenomenon of ‘personalisation’ – from behavioural advertising in commerce and micro-targeting in politics, to personalised pricing and contracting and predictive policing and recruitment. This is a huge area which touches upon many legal disciplines as well as social science concerns and, of course, computer science and mathematics. Within law, it goes well beyond data protection law, raising questions for criminal law, consumer protection, competition and IP law, tort law, administrative law, human rights and anti-discrimination law, law and economics as well as legal and constitutional theory. We’ve written a position paper, https://eprints.soton.ac.uk/428082/...
The most fascinating and profitable subject of predictive algorithms is the human actor. Analysin... more The most fascinating and profitable subject of predictive algorithms is the human actor. Analysing big data through learning algorithms to predict and pre-empt individual decisions gives a powerful tool to corporations, political parties and the state. Algorithmic analysis of digital footprints, as an omnipresent form of surveillance, has already been used in diverse contexts: behavioural advertising, personalised pricing, political micro-targeting, precision medicine, and predictive policing and prison sentencing. This volume brings together experts to offer philosophical, sociological, and legal perspectives on these personalised data practices. It explores common themes such as choice, personal autonomy, equality, privacy, and corporate and governmental efficiency against the normative frameworks of the market, democracy and the rule of law. By offering these insights, this collection on data-driven personalisation seeks to stimulate an interdisciplinary debate on one of the most pervasive, transformative, and insidious socio-technical developments of our time.
Research Handbook on International Law and Cyberspace , 2021
Jurisdiction - or more precisely the entitlement to regulate a transnational event, that is to ma... more Jurisdiction - or more precisely the entitlement to regulate a transnational event, that is to make, apply and enforce laws in respect of it - continues to be a live issue within the arena of network regulation and to evolve in line with wider regulatory trends. The controversy in the online environment has shifted away from the question of whether and, if so, when a State may apply its defamation, privacy, contract and intellectual property law, or criminal and regulatory law on eg. obscenity, pharmaceutical licencing and gambling to a global online activity. Now the focus is on more pragmatic concerns and in particularly, on the dominant tech platforms and their gatekeeping and data collection capacities, and when and how they may be co-opted by into the business of territorial regulation. This chapter selectively traces jurisdictional developments as constitutive of these new regulatory trends in network society, set against customary international law on legislative, adjudicative and executive jurisdiction. It posits that the authority of the territorial State is after all not weakened by the rise of a global network society, and might even be strengthened by it.
This collection investigates the sharpening conflict between the nation state and the internet th... more This collection investigates the sharpening conflict between the nation state and the internet through a multidisciplinary lens. It challenges the idea of an inherently global internet by examining its increasing territorial fragmentation and, conversely, the notion that for states online law and order is business as usual. Cyberborders based on national law are not just erected around China's online community. Cultural, political and economic forces, as reflected in national or regional norms, have also incentivised virtual borders in the West. The nation state is asserting itself. Yet, there are also signs of the receding role of the state in favour of corporations wielding influence through de-facto control over content and technology. This volume contributes to the online governance debate by joining ideas from law, politics and human geography to explore internet jurisdiction and its overlap with topics such as freedom of expression, free trade, democracy, identity and cart...
The Internet raises many challenges to existing laws. However, there has not been much attention ... more The Internet raises many challenges to existing laws. However, there has not been much attention devoted to the issue of remedies. In this new digital environment we may find that extraordinary remedies such as an injunction, may need to be re-examined and reassessed. This article looks at some of the policies and practical implications involved in deciding the most appropriate remedies for a Digital Age.
The potential of the Internet to artificially move residence is dependent on the reliance on a fo... more The potential of the Internet to artificially move residence is dependent on the reliance on a formal rather than substantial nexus between the individual or entity and the territory in defining residence. While the Internet per se does not create substantial opportunities to artificially move residence of an essentially local business, the opportunities for global collaborative ventures created by the Internet would make the issue of 'residence' of a company or business more difficult to decide.
Oxford Handbook of Law, Regulation and Technology, 2017
This chapter documents the extreme stresses that cyberspace applies to state law by examining how... more This chapter documents the extreme stresses that cyberspace applies to state law by examining how private international law, or conflict of laws, has responded to the online global world. This highlights both the penetration of globalization into the 'private' sphere and the strongly 'public' or collective political nature of much of the 'private' ordering through national law. The chapter shows that the nation state is asserting itself against the very phenomenon-globalization (through cyberspace)-that threatens its existence, and does not shy away from accepting the fragmentation of this global cyberspace along traditional political boundaries as collateral damage to its own survival. Yet, the frequent appeal to international human rights normativity in recent conflicts jurisprudence suggests an awareness of the unsuitability and illegitimacy of nation state law for the global online world.
The almost two decade-long bonanza of civil litigation concerning gross human rights viol... more The almost two decade-long bonanza of civil litigation concerning gross human rights violations committed by corporations under the US Alien Tort Statute 1789 was scaled back by the US Supreme Court in Kiobel v Royal Dutch Petroleum in April 2013. The court restricted the territorial reach of human rights claims against transnational corporations by holding that the presumption against extra-territoriality applied to the Act. Thus Shell, the Dutch/British defendant, and the role it played in the brutal suppression by the Nigerian military of the Ogoni peoples' protest movement against the environmental devastation caused by oil exploration, lay outside the territorial scope of the Act. Legal accountability must lie in a State with a stronger connection with the dispute. While this article briefly engages with the Supreme Court decision, its main focus is on the attitude of Western governments to the corporate human rights litigation under the ATS as articulated in their amicus briefs. In these briefs they objected to the statute's excessive extraterritoriality and horizontal application of human rights to artificial non-State actors. In these two respects corporate ATS litigation created significant inroads into the conventional State-centric approach to human rights and thus provided an opportunity for more effective human rights enjoyment. This article tests the validity of the objections of Western governments to corporate human rights obligations under the ATS against the norms of public international law and against the substantive demands arising out of the shortfalls of the international human rights enforcement.
Continental European law on hate speech may be read - against the historically strict hierarchica... more Continental European law on hate speech may be read - against the historically strict hierarchical societies - as forms of levelling up of ‘dignity’ which was traditionally reserved to the upper classes. This democratisation of dignity which underlies European understanding of citizenry, recognises public insult and humiliation as tools for disempowerment and exclusion, and as inconsistent with legal and political equality. Yet, this construction of empowered citizenship enabled by the State inter alia through hate speech laws is at odds with the American view of empowered citizenry. There free speech jurisprudence is based on ‘liberty’ and deeply inscribed with settler mentality, one of self-reliance and self-rule and distrust of government, whether the old-world governments left behind, or the colonial administrations belatedly encountered in the new world. This paper argues that this binary opposition in the divergent treatment of hate speech hides non-binary preoccupations that reflect different primary fears which do not fall along the same ‘scale’. European liberal democracies fear the consequences of hate speech being left uncensored in the public domain (a WHAT concern), whilst America fears the consequences of content interventions by government (a WHO concern). Flowing from this, this paper proposes that the German Network Enforcement Law (NetzDG) of 2017 which requires major platforms to moderate content in response to user takedown notices based on German legally imposed speech standards delivers a compromise solution, a bridge, between American and European speech traditions. The mechanism which NetzDG adopts, namely public standards embedded in private processes, is arguably uniquely adept at simultaneously assuaging the primary European fear about the absence of effective speech controls in the public domain and the primary American fear about the presence of governmental censorship.
Revue critique de droit international privé , 2022
The European Data Protection Board’s Guidelines 05/2021 on the Interplay between the application ... more The European Data Protection Board’s Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR continue the maximalist territorial approach the EU has taken, at least since Google Spain and its insistence on ‘effective and complete protection of data subjects’ but speak particularly to the recognition in Schrems II that the simple extension of a protective law to another country does not necessarily translate into equivalent protection if the wider legal landscape in that country distorts it in its actual operation. This recognition almost necessarily entails that being subject to the GDPR (by virtue of Art 3) should not displace the transfers rules in Chapter V if the processing occurs in a third country, given that only the transfer rules are specifically directed towards the actual reception of GDPR duties and rights in the third country. Consistently but not easily reconcilable with the rules' inherent design, the Guidelines take a cumulative - rather than a complementary or compensatory - approach to the interplay of Art 3 and Chapter V of the GDPR. Implicitly, the approach acknowledges that giving the GDPR a wide territorial scope hardly delivers a panacea of effectiveness and control over data controllers or processors on far away shores in fundamentally different legal and political orders. Yet, whether this cumulative approach will deliver on the promise of increased protection is equally doubtful.
Data-Driven Personalisation in Markets, Politics and Law , 2021
Credit-score models provide one of the many contexts through which the big data micro-segmentatio... more Credit-score models provide one of the many contexts through which the big data micro-segmentation or ‘personalisation’ phenomenon can be analysed and critiqued. This chapter approaches the issue through the lens of anti-discrimination law, and in particular the concept of indirect discrimination. The argument presented is that despite its initial promise based on its focus on impact, ‘indirect discrimination’ is after all unlikely to deliver a mechanism to intervene and curb the excesses of the personalised service model. The reason for its failure does not lie in its inherent weaknesses but rather in the 'shortcomings' (entrenched biases) of empirical reality itself which any 'accurate' (or useful) statistical analysis cannot but reflect. Still, the anti-discrimination context offers insights that are valuable beyond its own disciplinary boundaries. For example, the opportunities for oversight and review based on correlations within outputs rather than analysis of inputs is fundamentally at odds with the current trend that demands greater transparency of AI, but may after all be more practical and realistic considering the AI’s ‘natural’ opacity and businesses’ ‘natural’ secrecy. The credit risk score context also provides a low-key yet powerful illustration of the oppressive potential of a world in which individual behaviour from ANY sphere or domain may be used for ANY purpose; where a bank, insurance company, employer, health care provider, or indeed any government authority can tap into our social DNA to pre-judge us, should it be considered appropriate and necessary for their manifold objectives.
Data-Driven Personalisation in Markets, Politics and Law , 2021
This is the introductory chapter to the edited collection on 'Data-Driven Personalisation in Mark... more This is the introductory chapter to the edited collection on 'Data-Driven Personalisation in Markets, Politics and Law' (CUP, 2021) that explores the emergent pervasive phenomenon of algorithmic prediction of human preferences, responses and likely behaviours in numerous social domains - ranging from personalised advertising and political microtargeting to precision medicine, personalised pricing and predictive policing and sentencing. This chapter reflects on such human-focused use of predictive technology, first, by situating it within a general framework of profiling and defends data-driven individual and group profiling against some critiques of stereotyping, on the basis that our cognition of the external environment is necessarily reliant on relevant abstractions or non-universal generalisations. The second set of reflections centres around the philosophical tradition of empiricism as a basis of knowledge or truth production, and uses this tradition to critique data-driven profiling and personalisation practices in its numerous manifestations.
Southampton Law School, Discussion Paper No 1, 2019
Call for Papers / Expressions of Interest
We will be holding a workshop on the topic of ‘Data-Dr... more Call for Papers / Expressions of Interest
We will be holding a workshop on the topic of ‘Data-Driven Personalisation in Markets, Politics and Law' on Friday 28 June 2019 at Southampton Law School. This is an important emerging area of law that goes well beyond data protection law, raising questions for criminal law, consumer protection, competition and IP law, tort law, administrative law, human rights and anti-discrimination law, law and economics as well as legal and constitutional theory. To give the workshop focus and structure, this position paper provides a snap-shot of what we think about the topic or how we would frame it. We would like to hear your thoughts!
Should you be interested in disagreeing, elaborating, confirming, contradicting, dismissing or just reflecting on anything in the paper and present those ideas at the workshop, send us an abstract by Friday 5 April 2019 (Ms Clare Brady [email protected]). We aim to publish an edited popular law/social science book with the most compelling contributions after the workshop.
This chapter challenges the commonly held view that the territorial State is fundamentally unsuit... more This chapter challenges the commonly held view that the territorial State is fundamentally unsuited to, and incompatible with, twenty-first century manifestations of globalization in the form of ever-tightening economic integration or all-pervasive global communication networks. This is only partly true. The State – as defined and enabled by public international law around the idea of territorial sovereignty – provides the ideal mechanism for global capital and corporate activity to function and grow with maximum efficiency and minimal accountability. The territorial nation State provides the legal framework that facilitates foreign wealth accumulation through open borders, and its subsequent retention in the Global North through closed borders. At the core of this legal framework are the territorial rules under private and public international law that provide high flexibility in selectively opening and closing borders as and when national interest demands. The chapter argues that the complementary concepts of territory and borders are useful constructs to ring-fence capital from ‘leakages’ to the outside. The argument is illustrated with reference to US cases applying the presumption against extraterritoriality, on the one hand, and by English corporate crossborder tort litigation, on the other hand. In these cases, the territorial State emerges not as a victim of globalization but as an essential participant, propagator and beneficiary of it.
This article argues that restrictions on expression based on 'gross offensiveness' or similar pub... more This article argues that restrictions on expression based on 'gross offensiveness' or similar public morality notions embedded in speech offences are not and cannot be politically neutral and be evenly applied to political speech, no matter who is the author. Such concepts draw on a majoritarian perspective purporting to be reflective of unified base values of the 'national community'. The article explores why such concepts of unacceptable speech are a poor fit for a deeply heterogeneous community, and all the more so on the internet, where those who engage in public discourse are even more numerous and more diverse in ethnic, cultural, political and social terms. Set against such a diverse speech landscape the prohibition of 'gross offensiveness', or what are considered the outer boundaries of acceptability, is repressive of minorities and of challenges to conventional opinions and existing power dynamics, and is liable to reinforce the very bigotry it seeks to relieve.
This is a draft which has subsequently been amended and published as Chapter 3 in Rowland, Kohl a... more This is a draft which has subsequently been amended and published as Chapter 3 in Rowland, Kohl and Charlesworth, Information Technology Law (5th ed, Taylor and Francis, 2016).
This is a draft of Chapter 7 in the now published edited collection 'The Net and the Nation State... more This is a draft of Chapter 7 in the now published edited collection 'The Net and the Nation State - Multidisciplinary Perspectives on Internet Governance' (CUP, 2017)
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Papers by Uta Kohl
We will be holding a workshop on the topic of ‘Data-Driven Personalisation in Markets, Politics and Law' on Friday 28 June 2019 at Southampton Law School. This is an important emerging area of law that goes well beyond data protection law, raising questions for criminal law, consumer protection, competition and IP law, tort law, administrative law, human rights and anti-discrimination law, law and economics as well as legal and constitutional theory. To give the workshop focus and structure, this position paper provides a snap-shot of what we think about the topic or how we would frame it. We would like to hear your thoughts!
Should you be interested in disagreeing, elaborating, confirming, contradicting, dismissing or just reflecting on anything in the paper and present those ideas at the workshop, send us an abstract by Friday 5 April 2019 (Ms Clare Brady [email protected]). We aim to publish an edited popular law/social science book with the most compelling contributions after the workshop.