EU Data Protection Law and Targeted Advertising: Consent and the Cookie Monster - Tracking the crumbs of online user behaviour

This article provides a holistic legal analysis of the use of cookies in Online Behavioural Advertising. The current EU legislative framework is outlined in detail, and the legal obligations are examined. Consent and the debates surrounding its implementation form a large portion of the analysis. The article outlines the current difficulties associated with the reliance on this requirement as a condition for the placing and accessing of cookies. Alternatives to this approach are explored, and the implementation of solutions based on the application of the Privacy by Design and Privacy by Default concepts are presented. This discussion involves an analysis of the use of code and, therefore, product architecture to ensure adequate protections.

The Feasibility of Applying EU Data Protection Law to Biological Materials: Challenging ‘Data’ as Exclusively Informational

Though controversial the question of applying data protection laws to biological materials has only gotten a little attention in data privacy discourse. This article aims to contribute to this dearth by arguing that despite absence of positive intention from the architects to apply the EU Data privacy law to biological materials, a range of developments in Molecular Biology and nano-technology—usually mediated by advances in ICT—may provide persuasive grounds to do so. In addition, paucity of sufficient explication of key terms like ‘data/information’ in these legislations may fuel such tendency whereby laws originally intended for the informational world may end up applying to the biological world. The article also analyzes various predicaments that may arise from applying data privacy laws to biological materials. A focus is made on legislative sources at the EU level though national laws are relied on when pertinent.

Impulses for an Effective and Modern Data Protection System

A substantial reform of data protection law is on the agenda of the European Commission as it is widely agreed that data protection law is faced by lots of challenges, due to fundamental technical and social changes or even revolutions. Therefore, the authors have issued draft new provisions on data protection law that would work in both Germany and Europe. The draft is intended to provide a new approach and deal with the consequences of such an approach. This article contains some key theses on the main legislatory changes that appear both necessary and adequate.

Missing Links in the Proposed EU Data Protection Regulation and Cloud Computing Scenarios: A Brief Overview

Applying location-focused data protection law within the context of a location-agnostic cloud computing framework is fraught with difficulties. While the Proposed EU Data Protection Regulation has introduced a lot of changes to the current data protection framework, the complexities of data processing in the cloud involve various layers and intermediaries of actors that have not been properly addressed. This leaves some gaps in the regulation when analyzed in cloud scenarios. This paper gives a brief overview of the relevant provisions of the regulation that will have an impact on cloud transactions and addresses the missing links. It is hoped that these loopholes will be reconsidered before the final version of the law is passed in order to avoid unintended consequences.

Open Data and Earth Observations The Case of Opening Up Access to and Use of Earth Observation Data Through the Global Earth Observation System of Systems

Earth observations (EO) represent a growing and valuable resource for many scientific, research and practical applications carried out by users around the world. Access to EO data for some applications or activities, like climate change research or emergency response activities, becomes indispensable for their success. However, often EO data or products made of them are (or are claimed to be) subject to intellectual property law protection and are licensed under specific conditions regarding access and use. Restrictive conditions on data use can be prohibitive for further work with the data. Global Earth Observation System of Systems (GEOSS) is an initiative led by the Group on Earth Observations (GEO) with the aim to provide coordinated, comprehensive, and sustained EO and information for making informed decisions in various areas beneficial to societies, their functioning and development. It seeks to share data with users world-wide with the fewest possible restrictions on their use by implementing GEOSS Data Sharing Principles adopted by GEO. The Principles proclaim full and open exchange of data shared within GEOSS, while recognising relevant international instruments and national policies and legislation through which restrictions on the use of data may be imposed.The paper focuses on the issue of the legal interoperability of data that are shared with varying restrictions on use with the aim to explore the options of making data interoperable. The main question it addresses is whether the public domain or its equivalents represent the best mechanism to ensure legal interoperability of data. To this end, the paper analyses legal protection regimes and their norms applicable to EO data. Based on the findings, it highlights the existing public law statutory, regulatory, and policy approaches, as well as private law instruments, such as waivers, licenses and contracts, that may be used to place the datasets in the public domain, or otherwise make them publicly available for use and re-use without restrictions. It uses GEOSS and the particular characteristics of it as a system to identify the ways to reconcile the vast possibilities it provides through sharing of data from various sources and jurisdictions on the one hand, and the restrictions on the use of the shared resources on the other. On a more general level the paper seeks to draw attention to the obstacles and potential regulatory solutions for sharing factual or research data for the purposes that go beyond research and education.

Platform Privacy: The Missing Piece of Data Protection Legislation

After years of deliberation, the EU commission sped up the reform process of a common EU digital policy considerably in 2015 by launching the EU digital single market strategy. In particular, two core initiatives of the strategy were agreed upon: General Data Protection Regulation and the Network and Information Security (NIS) Directive law texts. A new initiative was additionally launched addressing the role of online platforms. This paper focuses on the platform privacy rationale behind the data protection legislation, primarily based on the proposal for a new EU wide General Data Protection Regulation. We analyse the legislation rationale from an Information System perspective to understand the role user data plays in creating platforms that we identify as “processing silos”. Generative digital infrastructure theories are used to explain the innovative mechanisms that are thought to govern the notion of digitalization and successful business models that are affected by digitalization. We foresee continued judicial data protection challenges with the now proposed Regulation as the adoption of the “Internet of Things” continues. The findings of this paper illustrate that many of the existing issues can be addressed through legislation from a platform perspective. We conclude by proposing three modifications to the governing rationale, which would not only improve platform privacy for the data subject, but also entrepreneurial efforts in developing intelligent service platforms. The first modification is aimed at improving service differentiation on platforms by lessening the ability of incumbent global actors to lock-in the user base to their service/platform. The second modification posits limiting the current unwanted tracking ability of syndicates, by separation of authentication and data store services from any processing entity. Thirdly, we propose a change in terms of how security and data protection policies are reviewed, suggesting a third party auditing procedure.

Personal Data and Encryption in the European General Data Protection Regulation

Encryption of personal data is widely regarded as a privacy preserving technology which could potentially play a key role for the compliance of innovative IT technology within the European data protection law framework. Therefore, in this paper, we examine the new EU General Data Protection Regulation’s relevant provisions regarding encryption – such as those for anonymisation and pseudonymisation – and assess whether encryption can serve as an anonymisation technique, which can lead to the non-applicability of the GDPR. However, the provisions of the GDPR regarding the material scope of the Regulation still leave space for legal uncertainty when determining whether a data subject is identifiable or not. Therefore, we inter alia assess the Opinion of the Advocate General of the European Court of Justice (ECJ) regarding a preliminary ruling on the interpretation of the dispute concerning whether a dynamic IP address can be considered as personal data, which may put an end to the dispute whether an absolute or a relative approach has to be used for the assessment of the identifiability of data subjects. Furthermore, we outline the issue of whether the anonymisation process itself constitutes a further processing of personal data which needs to have a legal basis in the GDPR. Finally, we give an overview of relevant encryption techniques and examine their impact upon the GDPR’s material scope.