(2016) 13:1 SCRIPTed 1–111

Issue DOI: 10.2966/scrip.130116

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  • Comparative Case Studies in Implementing Net Neutrality: A Critical Analysis of Zero Rating
    Christopher T. Marsden, pp. 1-39
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    This article critically examines the relatively few examples of regulatory implementation of network neutrality enforcement at national level. It draws on co-regulatory and self-regulatory theories of implementation and capture, and interdisciplinary studies into the real-world effect of regulatory threats to traffic management practices (TMP). Most academic and policy literature on net neutrality regulation has focussed on legislative proposals and economic or technological principles, rather than specific examples of comparative national implementation. This is in part due to the relatively few case studies of effective implementation of legislation. The article presents the results of fieldwork in South America, North America and Europe over an extended period (2003-2015). The countries studied are: Brazil, India, Chile, Norway, Netherlands, Slovenia, Canada, United States, and those within the European Union. Empirical interviews were conducted in-field with regulators, government officials, ISPs, content providers, academic experts, NGOs and other stakeholders from Chile, Brazil, United States, India, Canada, United Kingdom, Netherlands, Slovenia, Norway. It also explores the opaque practices of co-regulatory forums where governments or regulators have decided on partial private rather than public diplomacy with ISPs, notably in the US, Norway and UK. The article notes the limited political and administrative commitment to effective regulation thus far, and draws on that critical analysis to propose reasons for failure to implement effective regulation. Finally, it compares results of implementations and proposes a framework for a regulatory toolkit. The specific issue considered are the tolerance of zero rating practices, notably as deployed by mobile ISPs.

  • Blockchains and Online Dispute Resolution: Smart Contracts as an Alternative to Enforcement
    Riikka Koulu, pp. 40-69
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    As cross-border online transactions increase the issue of cross-border dispute resolution and enforcement becomes more and more topical. Disputes arising from e-commerce are seldom taken into the public courts and therefore online dispute resolution (ODR) is becoming a mainstream solution for resolving them. Simultaneously, different applications and possibilities of blockchain technologies such as cryptocurrencies have caught the attention of both computer scientists and legal scholars, increasingly gaining momentum. However, the potential of blockchains reach further than their use as a currency: they can be used for the decentralised execution of programmable contracts known as smart contracts, completely without the need for intermediaries like e-commerce sites, credit card companies or courts. These possibilities have not previously been discussed in relation to dispute resolution. This article provides an introduction to this new technological possibility by examining self-executing smart contracts that utilise novel blockchain technologies. To demonstrate the logic behind smart contracts more concretely, a weather bet (i.e. a bet on what the weather is going to be in a given location) is translated into a programmable smart contract and then discussed in lines of code with further explanations. In addition to this, the author suggests that smart contracts could also be employed for the purposes of dispute resolution, which might provide a solution for the problem of enforcing ODR decisions. Instead of normative analysis, the article provides an introductory analysis of the legal implications that the blockchain technology has outside its application as virtual currency.

  • Enhancing Biobank Participants’ Rights – From Paper to Portal
    Jasper Bovenberg, Mathijs Kattenberg, Bart Baselmans, Michel Sinke, Remko Hoekstra, Dorret I. Boomsma, and Gonneke Willemsen, pp. 70-82
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    On paper, participants in population biobanks – large-scale collections of human samples and associated health data – enjoy a number of rights such as the right to consent to their participation, to withdraw, to feedback and to view their data (biobank rights). In reality, however, exercising these rights proves difficult, as it requires participants to use pen and paper, envelops and stamps, and regular mail. Worse, some rights are even denied, as honouring them is claimed to require a disproportionate effort on the part of the biobank. This “enforcement deficit” is hard to justify in the light of the same very developments in IT that helped build and use the biobanks; why not deploy that technology to empower participants to exercise their rights in those biobanks? This question may become an imperative, as the recently adopted EU General Data Protection Regulation now requires biobanks to facilitate the exercise of data subject rights. Introducing the concept of Consent and Control Enhancing Technologies – akin to the concept of Privacy Enhancing Technologies – we have designed and delivered a digital biobank rights portal (“MyBiobank”), which enables participants in a population biobank to actually (i.e. digitally) exercise a number of their biobank rights. On the flipside, MyBiobank provides biobanks with a platform to: (i) reduce time and costs of organising and distributing questionnaires; (ii) honour participants’ biobank rights and to meet statutory requirements; (iii) build and maintain trust and transparency among participants, researchers, research ethics committees, supervisory authorities, funders and the public; (iv) promote participant engagement; (v) “valorise” findings, knowledge and data; (vi) benefit from unsolicited, active contributions of the participant to biobank research and (vii) share benefits with participants by providing them with a digital avenue to get to see “what’s in it for him or her.” Notably, however, in the current version of MyBiobank, both the issue of withdrawal and the issue of feedback of genetic information remain to be resolved.


  • The Online/Offline Cognitive Divide: Implications for Law
    Brian Christopher Jones, pp. 83-94
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    While the online and offline realms continue to converge, this piece argues that a significant cognitive divide remains. This is especially the case as regards the use of social media. The structural mechanisms of these platforms encourage (and even propel) speech, which facilitates a unique cognitive environment for users; an atmosphere where individuals tend to be much more likely to engage in speech than in the physical realm. Many argue that such disinhibition is due to anonymity, but research has demonstrated that it is a more complex picture than previously believed. For the most part the law has ignored these distinct online characteristics, treating speech over social media as if it were “café” or “pub talk”. In fact most of the current UK legislation used to regulate speech over the internet, including of course speech over social media, was enacted before these neoteric services came into existence. While prosecution guidelines throughout the UK have been updated to include social media considerations, it is highly debateable as to whether they have proven effective in recognising social media as a unique cognitive environment. And although policies based around technological neutrality remain increasingly attractive to law-makers, especially as the online and offline realms become less distinct, it is important to remember that law cannot properly operate based on such real or perceived eventualities.

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