Pascal Pichonnaz (Chair; ELI President; Professor, University of Fribourg) welcomed participants and explained that ELI assembled a team to contribute to discussions marking the 30th anniversary of the European Single Market, composed of Reporters of some of ELI’s completed projects. He added that the speakers prepared written contributions, available here, and that the webinar aimed to supplement these.
Christiane Wendehorst (ELI Scientific Director; Project Co-Reporter of the ALI-ELI project on Principles for a Data Economy: Data Transactions and Data Rights; Professor, University of Vienna) presented her views on the data economy in the digital single market. She pointed out that data is vital in the quest to boost the European data economy, and it is therefore essential that European businesses have access to the right amount and quality of data, as underlined by recent data policies. On the other hand, there is a conflicting paradigm of protectionism, most notably exemplified by data protection legislation at EU level which focused on personal data on the one hand (eg the General Data Protection Regulation (EU) 2016/679 (GDPR)) but also non-personal data (eg rules protecting intellectual property rights, national security, etc). In her view, one of the main challenges for the future will be to manage the tension between these two conflicting paradigms of ‘open by default’ and ‘protection by default’. She elaborated on strategies seen at the level of EU law that aim at resolving this tension – including the idea on data trusteeship which she put forward and is gaining ground and data portability (a situation for which the ALI-ELI Principles established the concept of ‘co-generated data’, which seems to be now widely recognised) – and labelled them a third paradigm shift. Wendehorst underlined the importance of a consistent and holistic approach in tackling the matter within the Single Market. She also suggested a period of reflection before further legislation is rolled out and touted the possibility of a European Data Code in future.
Aneta Wiewiórowska-Domagalska (ELI Executive Committee Member; Project Co-Reporter of the ELI project on Model Rules on Online Platforms; Senior Researcher at the University of Osnabrück) focused on the role of online platforms in the single market, pointing out that it is currently too early to assess how platform regulation is going to work in practice, as the publication of the Digital Services Act and Digital Markets Act is being awaited. At the same time, it is too late to advocate for specific solutions. She highlighted possible challenges that might arise concerning enforcement of platform rules, which will affect different areas of law at the Member States’ level. This will require huge efforts as well as good coordination between different legal branches within national systems. She also questioned the issue of very large online platforms (VLOPs) evaluating their own impact on the market, and thereby becoming private regulators, which might ultimately give VLOPs more powers. Time will tell how the new framework will work in practice; however, significant success has already been achieved by the EU simply by managing to adopt platform rules at EU level that include a potential for severe sanctions for violations.
Juliette Sénéchal (Co-Reporter on ELI project on Blockchain Technology and Smart Contracts (until January 2021); Professor, University of Lille) discussed the single market and the uptake of digitalisation platforms, blockchains and non-fungible tokens (NFTs). She pointed out the use of NFTs could present a crossroad between the centralised online platforms and decentralised blockchains, in order to produce a renewed form of exclusivity on digital content or digital services, which holders could use, either in the real world, or in the parallel world of the platform (metaverse). She pointed out that in this context, however, several questions arise that are of interest to users, industry and government, such as what are the legal and economic values of the exclusivity conferred? What is the qualification of the contractor receiving the NFT (are they a consumer, professional, client etc) and of the contractor providing the NFT (are they an author, platform operator, artist etc)? It is also unclear whether the exclusivity conferred with an NFT has the same meaning in the real world and in a metaverse.
Bernhard Koch (Co-Reporter of the ELI project on the Reform of the Product Liability Directive; Professor, University of Innsbruck) talked about updating product liability for the digital age. He provided an initial assessment of the Commission’s recently published draft of a revised Product Liability Directive (PLD), in light of ELI’s work on the topic so far. In doing so, he underlined that products and markets changed substantially since the introduction of the 1985 PLD, and that the expansion of the scope of the PLD to cover purely digital products among other changes was welcome. He continued to analyse other key provisions of the proposed PLD, which addressed many concerns raised by ELI in its Guiding Principles for Updating the Product Liability Directive for the Digital Age and Draft of a Revised Product Liability Directive. He concluded by stating that while the Commission’s new proposal presents a major leap in the right direction, some provisions might still require closer scrutiny, such as the retention of the development risk defence and the long-stop limitation periods which still start when the product was ‘placed on the market’ even if the manufacturer continues to supply it with updates.
Teresa Rodriguez de las Heras Ballell (ELI Executive Committee Member; Author of ELI’s Innovation Paper on Guiding Principles for Automated Decision-Making in the EU, Professor, Universidad Carlos III de Madrid) highlighted the potential that automated decision making (ADM) has for the future of digital society as well as its inherent risks, both of which have not gone unnoticed in recent EU initiatives. She referred to the principles that have been already crystallising in existing legislation or proposals (such as in the GDPR, Platform-to-Business Regulation, the proposed Digital Services Act and the proposed AI Act). Yet, she emphasised, the EU does not yet have a predictable, reliable, consistent and all-embracing legal framework for ADM, and for the use of algorithmic and AI systems in the context of contractual transactions. She drew the attention of those present to ELI’s Innovation Paper on Guiding Principles for Automated Decision-Making in the EU, which tried to contribute to this exercise and offer guidance. Her key thesis was that a Digital Single Market for ADM will not thrive without a thorough analysis of existing rules as well as their ‘ADM-readiness’ check, performed also in the ELI project on Guiding Principles and Model Rules on Algorithmic Contracts. Only through such a holistic approach will a unified, clear, predictable, consistent, coherent legal framework emerge in this field.
During the Q&A session, participants discussed, among other things, the importance of ADM/AI systems recognising their own shortcoming, and the role and skills of lawyers and courts in the context of digitalisation.
The webinar recording is available below.
