Online data processing consent under EU law: a theoretical framework and empirical evidence from the UK

This article analyses the results of an empirical study on the 200 most popular UK-based websites in various sectors of e-commerce services. The study provides empirical evidence on unlawful processing of personal data. It comprises a survey on the methods used to seek and obtain consent to process personal data for direct marketing and advertisement, and a test on the frequency of unsolicited commercial emails (UCE) received by customers as a consequence of their registration and submission of personal information to a website. Part One of the article presents a conceptual and normative account of data protection, with a discussion of the ethical values on which EU data protection law is grounded and an outline of the elements that must be in place to seek and obtain valid consent to process personal data. Part Two discusses the outcomes of the empirical study, which unveils a significant departure between EU legal theory and practice in data protection. Although a wide majority of the websites in the sample (69%) has in place a system to ask separate consent for engaging in marketing activities, it is only 16.2% of them that obtain a consent which is valid under the standards set by EU law. The test with UCE shows that only one out of three websites (30.5%) respects the will of the data subject not to receive commercial communications. It also shows that, when submitting personal data in online transactions, there is a high probability (50%) of incurring in a website that will ignore the refusal of consent and will send UCE. The article concludes that there is severe lack of compliance of UK online service providers with essential requirements of data protection law. In this respect, it suggests that there is inappropriate standard of implementation, information and supervision by the UK authorities, especially in light of the clarifications provided at EU level.

Reconstructing copyright exhaustion in the online world

According to the principle of copyright exhaustion, once a copy of a work is placed on the market, the right holder’s control over further distribution of that copy is exhausted. Unlike the distribution of hard copies of copyright works, however, the electronic dissemination of content is not subject to the exhaustion principle. This means that second-hand markets of digital goods cannot exist. Traditionally, exhaustion is premised on four assumptions that cannot be safely assumed in the online context: it applies to tangible copies only; it covers goods and not services; the goods should be sold but not licensed; and the property entitlement should be alienated upon transfer. After long jurisprudential silence, courts at worldwide level have revisited these normative impediments to affirm that exhaustion can apply online in specific instances. The article discusses the doctrinal norms that underpin exhaustion and determines the conditions under which online copyright exhaustion can apply.

Massive Open Online Courses and sustainability

Massive Open Online Courses (MOOCs) have become very popular among learners millions of users from around the world registered with leading platforms. There are hundreds of universities (and other organizations) offering MOOCs. However, sustainability of MOOCs is a pressing concern as MOOCs incur up front creation costs, maintenance costs to keep content relevant and on-going support costs to provide facilitation while a course is being run. At present, charging a fee for certification (for example Coursera Signature Track and FutureLearn Statement of Completion) seems a popular business model. In this paper, the authors discuss other possible business models and their pros and cons. Some business models discussed here are: Freemium model – providing content freely but charging for premium services such as course support, tutoring and proctored exams. Sponsorships – courses can be created in collaboration with industry where industry sponsorships are used to cover the costs of course production and offering. For example Teaching Computing course was offered by the University of East Anglia on the FutureLearn platform with the sponsorship from British Telecom while the UK Government sponsored the course Introduction to Cyber Security offered by the Open University on FutureLearn. Initiatives and Grants – The government, EU commission or corporations could commission the creation of courses through grants and initiatives according to the skills gap identified for the economy. For example, the UK Government’s National Cyber Security Programme has supported a course on Cyber Security. Similar initiatives could also provide funding to support relevant course development and offering. Donations – Free software, Wikipedia and early OER initiatives such as the MIT OpenCourseware accept donations from the public and this could well be used as a business model where learners could contribute (if they wish) to the maintenance and facilitation of a course. Merchandise – selling merchandise could also bring revenue to MOOCs. As many participants do not seek formal recognition (European Commission, 2014) for their completion of a MOOC, merchandise that presents their achievement in a playful way could well be attractive for them. Sale of supplementary material –supplementary course material in the form of an online or physical book or similar could be sold with the revenue being reinvested in the course delivery. Selective advertising – courses could have advertisements relevant to learners Data sharing – though a controversial topic, sharing learner data with relevant employers or similar could be another revenue model for MOOCs. Follow on events – the courses could lead to follow on summer schools, courses or other real-life or online events that are paid-for in which case a percentage of the revenue could be passed on to the MOOC for its upkeep. Though these models are all possible ways of generating revenue for MOOCs, some are more controversial and sensitive than others. Nevertheless unless appropriate business models are identified the sustainability of MOOCs would be problematic.