Damian Clifford - Academia.edu (original) (raw)
Papers by Damian Clifford
JIPITEC 5 (2014) 3 - This article provides a holistic legal analysis of the use of cookies in Onl... more JIPITEC 5 (2014) 3 - 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.
Constitutional Challenges in the Algorithmic Society
Is a future in which our emotions are being detected in real time and tracked, both in private an... more Is a future in which our emotions are being detected in real time and tracked, both in private and public spaces, dawning? Looking at recent technological developments, studies, patents, and ongoing experimentations, this may well be the case. 1 In its Declaration on the manipulative capabilities of algorithmic processes of February 2019, the Council of Europe's Committee of Ministers alerts us for the growing capacity of contemporary machine learning tools not only to predict choices but also to influence emotions, thoughts, and even actions, sometimes subliminally. 2 This certainly adds a new dimension to existing computational means, which increasingly make it possible to infer intimate and detailed information about individuals from readily available data, facilitating the microtargeting of individuals based on profiles in a way that may profoundly affect * The chapter is based on the keynote delivered by P. Valcke at the inaugural conference 'Constitutional Challenges in the Algorithmic Society' of the IACL Research Group on Algorithmic State Market & Society-Constitutional Dimensions', which was held from 9 to 11 May 2019 in Florence (Italy). It draws heavily from the PhD thesis of D. Clifford, entitled 'The Legal Limits to the Monetisation of Online Emotions' and defended at KU Leuven-Faculty of Law on July 3, 2019, to which the reader is referred for a more in-depth discussion. 1 For some illustrations, see B. Doerrfeld, '20+ Emotion Recognition APIs That Will Leave You Impressed, and Concerned' (Article 2015) https://nordicapis.com/20-emotion-recognition-apis-thatwill-leave-you-impressed-and-concerned/ accessed 11 June 2020; M. Zhao, F. Adib and D. Katabi, 'EQ-Radio: Emotion Recognition using Wireless Signals' (Paper 2016) http://eqradio.csail.mit.edu/ accessed 11 June 2020; CB Insights, 'Facebook's Emotion Tech: Patents Show New Ways for Detecting and Responding to Users' Feelings' (Article 2017) www.cbinsights.com/research/facebookemotion-patents-analysis/ accessed 11 June 2020; R. Murdoch et al., 'How to Build a Responsible Future for Emotional AI' (Research Report 2020) www.accenture.com/fi-en/insights/softwareplatforms/emotional-ai accessed 11 June 2020. Gartner predicts that by 2022, 10 per cent of personal devices will have emotion AI capabilities, either on-device or via cloud services, up from less than 1% in 2018: Gartner, 'Gartner Highlights 10 Uses for AI-Powered Smartphones' (Press Release 2018) www .gartner.com/en/newsroom/press-releases/2018-03-20-gartner-highlights-10-uses-for-ai-powered-smart phones accessed
The International Journal of Children’s Rights
The coronavirus pandemic has significantly restricted children’s opportunities for play and socia... more The coronavirus pandemic has significantly restricted children’s opportunities for play and socialisation with friends in physical outside spaces. As a consequence, children’s participation in educational, play and entertainment activities are now predominantly taking place online. One form of online play which has become immensely popular with a young audience, is esports. However, esports and the platforming of play have been associated with public health concerns and excessive commercialisation. This paper will therefore address these issues through the lens of children’s rights, in particular the right to play and the right to protection from exploitation. It will explore whether esports can contribute to the realisation of the right to play and enable other rights such as the right to development, assembly and freedom of expression during covid-19.
Proceedings of the 2021 CHI Conference on Human Factors in Computing Systems
User engagement with data privacy and security through consent banners has become a ubiquitous pa... more User engagement with data privacy and security through consent banners has become a ubiquitous part of interacting with internet services. While previous work has addressed consent banners from either interaction design, legal, and ethics-focused perspectives, little research addresses the connections among multiple disciplinary approaches, including tensions and opportunities that transcend disciplinary boundaries. In this paper, we draw together perspectives and commentary from HCI, design, privacy and data protection, and legal research communities, using the language and strategies of "dark patterns" to perform an interaction criticism reading of three different types of consent banners. Our analysis builds upon designer, interface, user, and social context lenses to raise tensions and synergies that arise together in complex, contingent, and conflicting ways in the act of designing consent banners. We conclude with opportunities for transdisciplinary dialogue across legal, ethical, computer science, and interactive systems scholarship to translate matters of ethical concern into public policy. CCS Concepts: • Human-centered computing → User interface design; • Social and professional topics → Governmental regulations; Codes of ethics; • Security and privacy → Social aspects of security and privacy.
Proceedings of the 2021 AAAI/ACM Conference on AI, Ethics, and Society
SSRN Electronic Journal
Data protection laws are under strain to respond to the continuing advances in information and co... more Data protection laws are under strain to respond to the continuing advances in information and communications technologies, including now AI technologies. How strictly they regulate the handling of personal information and its effects for human identity varies between jurisdictions, despite efforts to achieve international harmonisation. One such area of disparity between existing data protection laws is on the question of whether some types of data, designated ‘sensitive’, or ‘special’, should be subject to stricter legal or practical protection. In this article, we consider the basis on which some categories of data are accorded enhanced protection as sensitive (or special) in modern data protection regimes, and why the categories themselves may vary between jurisdictions. The blurring of the boundaries between ‘ordinary’ personal data and these sensitive categories through the potential to draw inferences from intensive data processing facilitated by developments in artificial intelligence (and more specifically machine learning), raises important new questions for policymakers.
Computer Law & Security Review
Abstract As information and communication technologies have gradually invaded every aspect of our... more Abstract As information and communication technologies have gradually invaded every aspect of our daily lives, the body of law that we call IT law has not only expanded, but it also pushes traditional areas of law to become more tech-savvy. This article makes a plea for a more intra- and interdisciplinary approach towards developing the future IT law, on the one hand, and towards educating the future IT lawyer, on the other hand. It substantiates the need for lawyers from different fields and non-lawyers to engage in a constructive dialogue when determining, interpreting and enforcing fairness standards in contemporary and future IT law, and outlines directions for integrating such dialogue in university curricula.
SSRN Electronic Journal
The adoption of emotion detection technology is rapidly expanding. Facebook in particular has rec... more The adoption of emotion detection technology is rapidly expanding. Facebook in particular has received significant media attention in this regard. But how does the continued development and deployment of this technology in an online setting fit within the current EU regulatory framework? How does the use of such technology for advertising and marketing purposes online affect the decision-making capacity of citizen consumers? The purpose of this paper is to examine these questions in light of the respective data protection and consumer protection frameworks. This legal analysis is informed by an examination of the jurisprudential positioning of emotion in law and interdisciplinary insights drawn from decision-theory research. The theory of law and emotions relies strongly on the broader philosophical writings on the role of emotions by authors from a range of disciplinary backgrounds (cognitive psychology, neuroscience, philosophy etc.)
SSRN Electronic Journal
One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a stre... more One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a strengthening of the concept of consent. For instance, although the freely given stipulation existed in the old framework—the Data Protection Directive 95/46/EC—the changes introduced by the GDPR arguably imply that access to services may no longer depend on data subject consent. In reality however, data subjects often find themselves confronted with standard privacy policies and take-it-or-leave-it offers. Against this background, this Article aims to examine the alignment of the respective data protection and privacy, consumer protection, and competition law policy agendas through the lens of pre-formulated declarations of consent. The Article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive, and the Digital Content Directive (Compromise), in addition to market dominance. Competition law analysis is explored vis-a-vis whether it could offer indicators of when a clear imbalance in controller-data subject relations may occur in the context of the requirement for consent to be freely given, as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR, stating that pre-formulated declarations of consent should not contain unfair terms.
International Data Privacy Law
• Since the notion of fairness underpins the regimes of competition, data protection and consumer... more • Since the notion of fairness underpins the regimes of competition, data protection and consumer law, it can act as a connecting factor to align substantive protections and enforcement mechanisms in the three fields. • While most attention has so far been devoted to how vigorous competition enforcement can render data protection rules more effective, the complementarity between the regimes also works the other way around. • In particular, substantive data protection or consumer law principles can be integrated into competition analysis so as to strengthen the ability of competition authorities to tackle new forms of commercial conduct. • At the same time, the competition concepts of market definition and market power can help to interpret the scale of obligations that data controllers and processors have to comply with under data protection law in line with the risk-based approach of the General Data Protection Regulation. • Tensions occur where competition enforcement favours sharing or merging of datasets for economic efficiency reasons against the spirit of the data protection rules, but there is also room for synergies by involving data protection or consumer authorities in merger investigations and by considering data protection or consumer interests more proactively in the design of merger remedies.
Computer Law & Security Review, 2016
Abstract Marketing techniques such as advergames have proven to be an extremely useful marketing ... more Abstract Marketing techniques such as advergames have proven to be an extremely useful marketing tool for advertisers and in particular when targeted towards children. Such techniques allow for the development of a positive product or brand association through the delivery of fun interactive content. As a result, children are no longer merely passive receivers of commercial communications. Instead, they become actively involved in the advertising process. Advergames have a potentially manipulative aspect. Children are often unable to distinguish between the commercial message and the non-commercial content. This has negative consequences when one considers the potentially persuasive nature of marketing techniques such as advergames which can further heighten this confusion. Moreover, as modern business models are based on data, advertisers are increasingly interested in the personal information of their young customers. Increased computing capabilities mean that commercial entities are now able to profile individual consumer behaviour online and assess how it differs from rational decision-making and to leverage this for economic gain. Such profiles facilitate the targeting of personalised advertisements thereby tailoring marketing campaigns based on children's behaviour. The capacity to collect and process information in addition to the technical ability to personalise consumer services online potentially allows for the triggering of consumer frailty. This has particular importance when one considers the effects of positive emotions, caused by advergames. The purpose of this paper is to examine the legal issues associated with advergames from an EU perspective and, in particular, this advertising technique's capacity to manipulate emotions.
Computer Law & Security Review, 2015
Abstract In this article online dispute resolution (ODR) and alternative dispute resolution (ADR)... more Abstract In this article online dispute resolution (ODR) and alternative dispute resolution (ADR) are assessed in relation to the protection of personal data. ODR and ADR schemes are mechanisms to settle low-cost e-commerce disputes out-of-court. The purpose of this analysis is to examine the suitability of online dispute resolution as an additional means to the existing mechanisms for data protection enforcement. In this discussion particular attention is given to services offered to users as ‘free’, but which instead process personal data as a condition on access (e.g. social networking sites). The second section examines data protection in the digital age, highlighting the key principles of data protection and the challenges associated with the existing enforcement mechanisms. The third section questions the suitability of online dispute resolution as a solution for data protection enforcement in the European Union. In order to avail of the EU regulated ODR mechanism to resolve data protection issues, data protection disputes must fall under the scope of the Alternative Dispute Resolution Directive and the Online Dispute Resolution Regulation. Following an analysis of the applicability of the framework in this context, the final part of this article focuses on the challenges associated with the application of ODR schemes to the enforcement of online data protection disputes.
JIPITEC 5 (2014) 3 - This article provides a holistic legal analysis of the use of cookies in Onl... more JIPITEC 5 (2014) 3 - 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.
Constitutional Challenges in the Algorithmic Society
Is a future in which our emotions are being detected in real time and tracked, both in private an... more Is a future in which our emotions are being detected in real time and tracked, both in private and public spaces, dawning? Looking at recent technological developments, studies, patents, and ongoing experimentations, this may well be the case. 1 In its Declaration on the manipulative capabilities of algorithmic processes of February 2019, the Council of Europe's Committee of Ministers alerts us for the growing capacity of contemporary machine learning tools not only to predict choices but also to influence emotions, thoughts, and even actions, sometimes subliminally. 2 This certainly adds a new dimension to existing computational means, which increasingly make it possible to infer intimate and detailed information about individuals from readily available data, facilitating the microtargeting of individuals based on profiles in a way that may profoundly affect * The chapter is based on the keynote delivered by P. Valcke at the inaugural conference 'Constitutional Challenges in the Algorithmic Society' of the IACL Research Group on Algorithmic State Market & Society-Constitutional Dimensions', which was held from 9 to 11 May 2019 in Florence (Italy). It draws heavily from the PhD thesis of D. Clifford, entitled 'The Legal Limits to the Monetisation of Online Emotions' and defended at KU Leuven-Faculty of Law on July 3, 2019, to which the reader is referred for a more in-depth discussion. 1 For some illustrations, see B. Doerrfeld, '20+ Emotion Recognition APIs That Will Leave You Impressed, and Concerned' (Article 2015) https://nordicapis.com/20-emotion-recognition-apis-thatwill-leave-you-impressed-and-concerned/ accessed 11 June 2020; M. Zhao, F. Adib and D. Katabi, 'EQ-Radio: Emotion Recognition using Wireless Signals' (Paper 2016) http://eqradio.csail.mit.edu/ accessed 11 June 2020; CB Insights, 'Facebook's Emotion Tech: Patents Show New Ways for Detecting and Responding to Users' Feelings' (Article 2017) www.cbinsights.com/research/facebookemotion-patents-analysis/ accessed 11 June 2020; R. Murdoch et al., 'How to Build a Responsible Future for Emotional AI' (Research Report 2020) www.accenture.com/fi-en/insights/softwareplatforms/emotional-ai accessed 11 June 2020. Gartner predicts that by 2022, 10 per cent of personal devices will have emotion AI capabilities, either on-device or via cloud services, up from less than 1% in 2018: Gartner, 'Gartner Highlights 10 Uses for AI-Powered Smartphones' (Press Release 2018) www .gartner.com/en/newsroom/press-releases/2018-03-20-gartner-highlights-10-uses-for-ai-powered-smart phones accessed
The International Journal of Children’s Rights
The coronavirus pandemic has significantly restricted children’s opportunities for play and socia... more The coronavirus pandemic has significantly restricted children’s opportunities for play and socialisation with friends in physical outside spaces. As a consequence, children’s participation in educational, play and entertainment activities are now predominantly taking place online. One form of online play which has become immensely popular with a young audience, is esports. However, esports and the platforming of play have been associated with public health concerns and excessive commercialisation. This paper will therefore address these issues through the lens of children’s rights, in particular the right to play and the right to protection from exploitation. It will explore whether esports can contribute to the realisation of the right to play and enable other rights such as the right to development, assembly and freedom of expression during covid-19.
Proceedings of the 2021 CHI Conference on Human Factors in Computing Systems
User engagement with data privacy and security through consent banners has become a ubiquitous pa... more User engagement with data privacy and security through consent banners has become a ubiquitous part of interacting with internet services. While previous work has addressed consent banners from either interaction design, legal, and ethics-focused perspectives, little research addresses the connections among multiple disciplinary approaches, including tensions and opportunities that transcend disciplinary boundaries. In this paper, we draw together perspectives and commentary from HCI, design, privacy and data protection, and legal research communities, using the language and strategies of "dark patterns" to perform an interaction criticism reading of three different types of consent banners. Our analysis builds upon designer, interface, user, and social context lenses to raise tensions and synergies that arise together in complex, contingent, and conflicting ways in the act of designing consent banners. We conclude with opportunities for transdisciplinary dialogue across legal, ethical, computer science, and interactive systems scholarship to translate matters of ethical concern into public policy. CCS Concepts: • Human-centered computing → User interface design; • Social and professional topics → Governmental regulations; Codes of ethics; • Security and privacy → Social aspects of security and privacy.
Proceedings of the 2021 AAAI/ACM Conference on AI, Ethics, and Society
SSRN Electronic Journal
Data protection laws are under strain to respond to the continuing advances in information and co... more Data protection laws are under strain to respond to the continuing advances in information and communications technologies, including now AI technologies. How strictly they regulate the handling of personal information and its effects for human identity varies between jurisdictions, despite efforts to achieve international harmonisation. One such area of disparity between existing data protection laws is on the question of whether some types of data, designated ‘sensitive’, or ‘special’, should be subject to stricter legal or practical protection. In this article, we consider the basis on which some categories of data are accorded enhanced protection as sensitive (or special) in modern data protection regimes, and why the categories themselves may vary between jurisdictions. The blurring of the boundaries between ‘ordinary’ personal data and these sensitive categories through the potential to draw inferences from intensive data processing facilitated by developments in artificial intelligence (and more specifically machine learning), raises important new questions for policymakers.
Computer Law & Security Review
Abstract As information and communication technologies have gradually invaded every aspect of our... more Abstract As information and communication technologies have gradually invaded every aspect of our daily lives, the body of law that we call IT law has not only expanded, but it also pushes traditional areas of law to become more tech-savvy. This article makes a plea for a more intra- and interdisciplinary approach towards developing the future IT law, on the one hand, and towards educating the future IT lawyer, on the other hand. It substantiates the need for lawyers from different fields and non-lawyers to engage in a constructive dialogue when determining, interpreting and enforcing fairness standards in contemporary and future IT law, and outlines directions for integrating such dialogue in university curricula.
SSRN Electronic Journal
The adoption of emotion detection technology is rapidly expanding. Facebook in particular has rec... more The adoption of emotion detection technology is rapidly expanding. Facebook in particular has received significant media attention in this regard. But how does the continued development and deployment of this technology in an online setting fit within the current EU regulatory framework? How does the use of such technology for advertising and marketing purposes online affect the decision-making capacity of citizen consumers? The purpose of this paper is to examine these questions in light of the respective data protection and consumer protection frameworks. This legal analysis is informed by an examination of the jurisprudential positioning of emotion in law and interdisciplinary insights drawn from decision-theory research. The theory of law and emotions relies strongly on the broader philosophical writings on the role of emotions by authors from a range of disciplinary backgrounds (cognitive psychology, neuroscience, philosophy etc.)
SSRN Electronic Journal
One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a stre... more One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a strengthening of the concept of consent. For instance, although the freely given stipulation existed in the old framework—the Data Protection Directive 95/46/EC—the changes introduced by the GDPR arguably imply that access to services may no longer depend on data subject consent. In reality however, data subjects often find themselves confronted with standard privacy policies and take-it-or-leave-it offers. Against this background, this Article aims to examine the alignment of the respective data protection and privacy, consumer protection, and competition law policy agendas through the lens of pre-formulated declarations of consent. The Article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive, and the Digital Content Directive (Compromise), in addition to market dominance. Competition law analysis is explored vis-a-vis whether it could offer indicators of when a clear imbalance in controller-data subject relations may occur in the context of the requirement for consent to be freely given, as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR, stating that pre-formulated declarations of consent should not contain unfair terms.
International Data Privacy Law
• Since the notion of fairness underpins the regimes of competition, data protection and consumer... more • Since the notion of fairness underpins the regimes of competition, data protection and consumer law, it can act as a connecting factor to align substantive protections and enforcement mechanisms in the three fields. • While most attention has so far been devoted to how vigorous competition enforcement can render data protection rules more effective, the complementarity between the regimes also works the other way around. • In particular, substantive data protection or consumer law principles can be integrated into competition analysis so as to strengthen the ability of competition authorities to tackle new forms of commercial conduct. • At the same time, the competition concepts of market definition and market power can help to interpret the scale of obligations that data controllers and processors have to comply with under data protection law in line with the risk-based approach of the General Data Protection Regulation. • Tensions occur where competition enforcement favours sharing or merging of datasets for economic efficiency reasons against the spirit of the data protection rules, but there is also room for synergies by involving data protection or consumer authorities in merger investigations and by considering data protection or consumer interests more proactively in the design of merger remedies.
Computer Law & Security Review, 2016
Abstract Marketing techniques such as advergames have proven to be an extremely useful marketing ... more Abstract Marketing techniques such as advergames have proven to be an extremely useful marketing tool for advertisers and in particular when targeted towards children. Such techniques allow for the development of a positive product or brand association through the delivery of fun interactive content. As a result, children are no longer merely passive receivers of commercial communications. Instead, they become actively involved in the advertising process. Advergames have a potentially manipulative aspect. Children are often unable to distinguish between the commercial message and the non-commercial content. This has negative consequences when one considers the potentially persuasive nature of marketing techniques such as advergames which can further heighten this confusion. Moreover, as modern business models are based on data, advertisers are increasingly interested in the personal information of their young customers. Increased computing capabilities mean that commercial entities are now able to profile individual consumer behaviour online and assess how it differs from rational decision-making and to leverage this for economic gain. Such profiles facilitate the targeting of personalised advertisements thereby tailoring marketing campaigns based on children's behaviour. The capacity to collect and process information in addition to the technical ability to personalise consumer services online potentially allows for the triggering of consumer frailty. This has particular importance when one considers the effects of positive emotions, caused by advergames. The purpose of this paper is to examine the legal issues associated with advergames from an EU perspective and, in particular, this advertising technique's capacity to manipulate emotions.
Computer Law & Security Review, 2015
Abstract In this article online dispute resolution (ODR) and alternative dispute resolution (ADR)... more Abstract In this article online dispute resolution (ODR) and alternative dispute resolution (ADR) are assessed in relation to the protection of personal data. ODR and ADR schemes are mechanisms to settle low-cost e-commerce disputes out-of-court. The purpose of this analysis is to examine the suitability of online dispute resolution as an additional means to the existing mechanisms for data protection enforcement. In this discussion particular attention is given to services offered to users as ‘free’, but which instead process personal data as a condition on access (e.g. social networking sites). The second section examines data protection in the digital age, highlighting the key principles of data protection and the challenges associated with the existing enforcement mechanisms. The third section questions the suitability of online dispute resolution as a solution for data protection enforcement in the European Union. In order to avail of the EU regulated ODR mechanism to resolve data protection issues, data protection disputes must fall under the scope of the Alternative Dispute Resolution Directive and the Online Dispute Resolution Regulation. Following an analysis of the applicability of the framework in this context, the final part of this article focuses on the challenges associated with the application of ODR schemes to the enforcement of online data protection disputes.