Ensuring the Mission of Public Service Broadcasters
Public Service Broadcasters (PSBs) are publicly organised and funded broadcasters, organised by each of the EU’s Member State with a great degree of discretion and under a unique legal framework. Politicised interventions and the decline of PSBs’ independence threaten their ability to adequately perform their role and offer citizens a high-quality public service which meets the public’s democratic and cultural needs. The politicisation of PSBs by national authorities, coupled with the increasing concerns about media freedom, shows that some type of regulatory intervention is necessary.
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Digital News Aggregators, Media Plurality and the Right to Information
The advent of the digital economy has brought many challenges to traditional business models, leading to new issues that go beyond pure market problems. This is also true for the news media industry since the emergence and rapid expansion of digital platforms like Google and Facebook. While the latter, in contrast to press publishers, do not produce any news content themselves, they have become digital news aggregators and first contact points for readers of online news. In this post, we reflect on the existing approaches towards addressing the bargaining imbalance between press publishers and digital news aggregators. We argue that the most adequate measure in addressing this imbalance would be a regulatory instrument such as a bargaining code.
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Regulating the Discursive Power of Big Tech Companies
Big Tech companies have power. One element of this power is discursive power, including in the public sphere, a cornerstone of democratic societies. In the current digitalized society, the public sphere has a significant online component. Discursive power may continue to grow, fuelled by AI developments, unless checked. To shape a possible legal response – we focus on European competition law – requires understanding the complexity of this power. Though competition law is focused on market power, we argue that it can and should have a role to play in curbing discursive power too, despite some inherent limitations.
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‘Democracies Die in Silence’
What is ‘media’ in a digitalized society where boundaries between news, commercial and social content are increasingly blurred? What do we really mean by ‘media pluralism’? These are all key questions liberal democracies in Europe and beyond need answers to, given both political challenges and the rise of market power and Big Tech companies whose actions affect media markets. While the law will not solve all of the problems associated with these developments, it can help in imposing limits on the way in which political and market power is used. This necessitates a sustained and informed debate as to what the existing legal framework offers and what additional legal responses are necessary.
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The ECtHR Advances the Battle against Racial Profiling in Wa Baile c. Suisse
On 20 February 2024, the European Court of Human Rights decided in the case of Wa Baile c. Suisse on racial profiling. This blog argues that the judgment represents a cautious step forward in the fight against racial profiling and repairs some shortcomings of earlier case law. The ECtHR holds that Switzerland violated Article 14 in combination with Article 8 ECHR. It reverses the burden of proof and accepts that both the lack of an adequate preventive framework and reports by international human rights bodies and NGOs contribute to establishing a presumption of discrimination.
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Advancing Accountability
In Alkhatib and Others v. Greece, the European Court of Human Rights (ECtHR) has condemned Greece for yet another instance of human rights violations in border management. By underlining the importance of clear regulations and adequate evidence within border operations, the Court showed avenues to enhance the accountability framework for violations perpetrated at Europe’s borders. Its decision contrasts favourably with the approach taken in the EU at large, where both legislators and national and supranational courts generally disregard the opacity in regulations governing border operations and the difficulty of collecting evidence for migrants.
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Regulating Political Advertising
The issue of financing political campaigns has been a topic of discussion for a while, especially against the background of the ongoing deliberations within the EU surrounding the adoption of the draft Political Advertisement Act (PAA). The recently concluded Polish parliamentary campaign and the assistance offered by State Owned Companies, along with the weak level of oversight on these actions, have highlighted certain shortcomings in the proposed framework that remain unaddressed in the current EU draft legislation. In particular, I argue that the PAA does not adequately regulate the methods and extent of financing for political campaigns such as microtargeting and mistakenly assumes the independence of regulatory bodies tasked with enforcing its requirements. An independent institutional system warranted by the European Commission to enforce the proposed rules is pivotal for PAA to achieve its goals.
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Social Media Contracts – The Quest for Fairness and the Need for Reform
The social media landscape is changing. The ‚public forum‘ is now filled with citizens selling products, promoting services, charging for subscriptions, and sometimes seeking attention in ways which may not be socially desirable. We ask: How can a space that is becoming increasingly commercialised, monetised, and is a source of income for many nevertheless be fair?
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Challenging Bias and Discrimination in Automated Border Decisions
In Ligue des droits humains, the Court of Justice of the European Union explicitly addresses the fact that the use of AI and self-learning risk models may deprive data subjects of their right to effective judicial protection as enshrined in the Charter. The importance of this judgment cannot be understated for non-EU citizens and at the European borders more generally.
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Machine learning and profiling in the PNR system
Automated processing of personal data, which is what Passenger Name Record data are, can lead to forms of profiling; certain individuals or groups of people are more likely to be excluded based on the transfer of their data than others. In its Passenger Name Record judgment, the CJEU extensively discusses discrimination risks, and it set a number of conditions to prevent them. Unfortunately, not all of its considerations are perfectly clear and some of the solutions the CJEU proposes are not entirely satisfactory.
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Inequality of Harms, Inequality of Arms
On November 8th 2022 Channa Samkalden, lawyer for Esther Kiobel and three other widows of executed Nigerian community leaders, announced that her clients would be ending their lawsuit against Shell. Uncertainty about the outcome, combined with the fact that the case had already been (unsuccessfully) going on for over 20 years in multiple fora, had made the four widows decide to withdraw the appeal, “not without disappointment and frustration”. In this blog, I discuss this case's remarkable procedural history and why it, set against the particular facts of the case, illustrates the fundamental procedural unfairness between large corporations and victims trying to hold them to account.
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Fakeness in Political Popularity
Politics in a democratic society have long been a glorified popularity contest, which we can all hope the most capable person wins. Hence, politicians have an incentive to artificially boost their online popularity through fakeness – fake comments, fake followers, fake likes. On a fundamental level, a false sense of popularity may affect our election outcomes – so what are the legal limits of fakeness?
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Frontex and Migrants’ Access to Justice
While possibly marking a step in the right direction towards more political accountability, the controversial resignation of Frontex’s former Executive Director, Fabrice Leggeri, leaves open the question about the effective judicial protection for migrants interacting with the agency. A number of judicial actions are brought before the Court of Justice of the European Union (CJEU), as the only competent tribunal with jurisdiction on Frontex. By critically reviewing these judicial actions from the perspective of migrants’ access to justice, this post aims to flag the limits of the existing system of EU judicial remedies in light of Frontex wrongdoings. Beyond access to a court, access to justice vis-à-vis EU migration agencies must integrate elements of good governance, such as transparency and accountability.
Continue reading >>Fundamental Rights at the Digital Border
We are witnessing the emergence of the EU’s ‘digital border’: an ecosystem of interoperable databases to expand the surveillance and control of the movement of third-country nationals. In this blog post, we discuss one of the latest additions to this ecosystem - the European Travel Information and Authorisation System, or ETIAS in short - and argue that the system as it is currently set up violates the right to data protection laid down in Article 8 of the Charter of Fundamental Rights, especially in light of the CJEU’s PNR judgment earlier this week. In many ways, we consider ETIAS to be a test case for a much wider roll-out of such often AI-powered technologies in the field of border control.
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Elon Musk Wants to Buy Twitter to Create a Free Speech Utopia: Now What?
The enigmatic Tesla founder Elon Musk has made a public offer to buy 100% of Twitter’s shares at approximately 138% of each share’s value. In his letter of intention submitted to the U.S. Securities and Exchange Commission, Musk describes that free speech is necessary in a democratic society, and he wishes to unlock its full potential by bringing Twitter under (his) private ownership. Constitutionally this raises an interesting point: if indeed a billionaire wants to change the rules of speech on the ‘new public squares’ by acquiring a social media platform, can he – and should he be able to?
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