All issues > Volume 15 > Issue 1 > Article

The importance of biobanks has long been mooted, and multiple models of development and operation can be found as a result of many actors founding biobanks (from institutions starting disease-specific banks to governments starting national population biobanks). Many countries began developing biobanks in the absence of national policies to aid in that formation. Taiwan was one such country. Believing that the unique genetic makeup, distinctive lifestyles, and disease-causing factors of the Taiwanese people deserved study, Taiwan took steps to create Taiwan Biobank. This paper examines Taiwan Biobank’s development and governance and focuses on two matters in particular which generated consternation during the development of Taiwan Biobank: the position adopted in relation to autonomy and ethnicity; and the approach toward transparency and internal governance. It concludes that Taiwan Biobank’s conflict-ridden evolution represents a cautionary tale, an example of how not to develop a flagship resource.

Copyright in Canada is subject to a number of statutory defences, of which parodies and non-commercial user-generated content (UGC) are but two examples. However, the interface between these defences and the protection of moral rights is not very clearly delineated in Canada’s Copyright Act. The statutory defences appear to immunise a user from liability for traditional copyright infringement but not from claims of moral rights infringement. Under this fragmentary approach, users engaging in acts of fair dealing or in the production of non-commercial UGC might still find themselves vulnerable to attack from author-claimants alleging that their moral rights have been violated. Through a comparative survey of key legislative provisions in Canada and the United Kingdom, this article explores the extent to which Canada can learn from the UK experience, and considers the viability of streamlining the scope of the statutory defences to copyright infringement, in order to clarify the interface between users’ rights, moral rights and economic rights.

Data portability is a fluid concept that can be used in multiple contexts and can be defined in various ways. In the EU General Data Protection Regulation, it is given the legal status of a data subject right. The key objectives of the right to data portability in the GDPR are privacy, protection of personal data, and data subjects’ control over their data. However, it remains open how these goals materialise through the new-born right. This article suggests four possible ways in which the right to data portability could unfold in the future: (i) establishing control over personal data transfers, (ii) enabling (re)use of personal data, (iii) enabling better understanding of data flows, and (iv) facilitating equality and allowing the free development of personality. Data portability could increase transparency of data processing and could allow data subjects to control their online identities. It could also be instrumental in enhancing other rights and principles, such as equality. However, the provision on data portability in the GDPR faces many legal and practical constraints. The prospects of the right will depend on regulatory interpretation and interactions with other legal areas.

Technology law scholars have recently started to consider the theories of affordance and technological mediation, imported from the fields of psychology, human-computer interaction (HCI), and science and technology studies (STS). These theories have been used both as a means of explaining how the law has developed, and more recently in attempts to cast the law per se as an affordance. This exploratory paper summarises the two theories, before considering these applications from a critical perspective, noting certain deficiencies with respect to potential normative application and definitional clarity, respectively. It then posits that in applying them in the legal context we should seek to retain the relational user-artefact structure around which they were originally conceived, with the law cast as the user of the artefact, from which it seeks certain features or outcomes. This approach is effective for three reasons. Firstly, it acknowledges the power imbalance between law and architecture, where the former is manifestly subject to the decisions, made by designers, which mediate and transform the substance of the legal norms they instantiate in technological artefacts. Secondly, from an analytical perspective, it can help avoid some of the conceptual and definitional problems evident in the nascent legal literature on affordance. Lastly, approaching designers on their own terms can foster better critical evaluation of their activities during the design process, potentially leading to more effective ‘compliance by design’ where the course of the law’s mediation by technological artefacts can be better anticipated and guided by legislators, regulators, and legal practitioners.

The General Data Protection Regulation (GDPR) will be applied from May 2018. One of the many new societal developments it has to deal with is the Quantified Self (QS). This concerns data that are collected about a person by apps that aim to improve his or her life. This article answers the question to what extent the tools and assumptions that underlie the creation of QS influence an individual’s freedom and to what extent the GDPR can contribute to the protection of this freedom. The article finds that QS can restrict an individual’s internal and external freedom. It suggests that everybody should meet a certain standard or group norm, which influences the choices individuals make. This is an internal restriction of freedom, which is largely unknown. A more familiar problem is the external restriction of freedom. This happens when data are analysed by the QS app or by third parties. They can make assumptions about a person on the basis of these data, which influences the possible options for an individual. The GDPR does protect certain elements of external freedom better than the EDPD. This mainly has to do with the rules related to data about health, and more stringent rules in general. The GDPR does not protect the internal aspect of freedom, although the possible risks of this internal restriction can be very serious.

In October 2016 Geofeedia made the news when it was reported that police services in North America had contracted with it for data analytics based on georeferenced information posted to social media websites such as Twitter and Facebook. Geofeedia is not the only data analytics company to mine social media data and to market its services to government authorities. These activities raise important issues around the transparency of state surveillance activities, as well as the targeting of protesters exercising their constitutional rights to free speech. This paper examines how the public sector reliance on purchased georeferenced data and analytics changes the dynamics of transparency of government action and calls for new measures and approaches.

The increasing number of smart devices entering our homes have implications for privacy. Not only do we bring in more spying devices into the home, often these smart objects are linked to data streams or other devices that leave the home – thereby literally taking private matters into public space. In this paper, we take the context of the Netherlands to show that current legal definitions and protections of the home are inadequate to deal with novel privacy threats that stem from devices that interact with us beyond the screen.

Argument invention (inventio) has traditionally been regarded as one of the five main components of rhetoric, but has remained an ambiguous, vague and highly contested concept, made even more confusing by its dependence on the Aristotelian topics, supposedly the places in which the rhetorical persuader can find arguments useful to support or attack a claim. The advent of two recently developed computational tools for argument invention, the Carneades Argumentation System and IBM’s Watson Debater tool, calls for a rethinking of the notion of argument invention in line with the state of the art of formal and computational argumentation systems in artificial intelligence. The role of argumentation schemes is an important part of this investigation into argument invention.

The procurement of stem cells, which is a crucial source-material in biomedical research promising the development of novel therapies in regenerative medicine, is subject to regulation using generic and technology-specific provisions throughout Europe. The relevant national regulatory regimes, while they share common regulatory frames, exhibit considerable differences as a matter of the regulatory approach followed, the biological level regulated, or of the context in which technologies for stem cell procurement are regulated. This variety indicates that legal regulation may resort to different means so as to secure a connection with the technology regulated. It is proposed that for improving “regulatory connection” states should consider engaging in regulatory borrowing from other systems covering both generic and specific instruments of technology regulation.

Policymakers worldwide have long debated how to maintain free expression on the Internet while minimising defamation and other harmful online speech. Key to these debates has been intermediary liability: whether online platforms should be held legally responsible for user-generated content. To inform this continued debate, this article examines the US experience with relatively broad intermediary liability immunity. Enacted two decades ago, Section 230 of the Communications Decency Act of 1996 provides robust immunity to websites, Internet service providers, social media providers, and other online platforms for legal claims arising from user content. This article examines the scope of the immunity that Section 230 provides to US platforms and examines the primary criticisms of this approach. This article analyses court opinions involving Section 230, and examines the content moderation policies and practices of the leading US online platforms. The article concludes that Section 230 has fostered the growth of social media, user reviews, and other online services that rely primarily on user-generated content. Critics of Section 230 raise valid concerns that the broad immunity often prevents lawsuits against online platforms. However, my research concludes that many of the largest US intermediaries voluntarily block objectionable and harmful content due to consumer and market demands.