Alan M Sears | Universiteit Leiden (original) (raw)

Papers by Alan M Sears

Edward Elgar Publishing eBooks, Apr 22, 2022

Social Science Research Network, 2019

Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union... more Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union's 'Net Neutrality' Regulation. Conversely, 'negative' net neutrality violations, normally associated with the blocking and throttling of content that threatens an Internet Service Provider's business model, are strictly prohibited. With the European Commission set for a public consultation on zero-rating, and The Body of European Regulators for Electronic Communications set to issue updated guidelines on the practice, the paper assesses the present state of zero-rating in Europe, focusing on differentiation cases to assess what types of positive net neutrality violations could result in a "material reduction on consumer choice" for mobile consumers. As zero-rating is generally limited to mobile subscriptions that include data caps, the Office of Economic Development has warned regulators to be vigilant against practices that could result in users constantly monitoring their data usage or limiting access to nonzero-rated services. The practice of 'zero-rating' in Europe poses a unique challenge to regulatory authorities keen to protect the principle of net neutrality. While consumers perceive free access to certain content, applications and programs as beneficial, zero-rating also contravenes the general aims of the Regulation: that Internet traffic is managed by Internet Service Providers in a non-discriminatory manner and that consumer choice is protected. While the practice might be seen to benefit consumers, zero-rating can also affect the number of providers entering the market and compromise the Regulation's aim to "guarantee the continued functioning of the internet ecosystem as an engine of innovation". The paper examines the state of zero-rating services, with specific emphasis on positive net neutrality violations across the European Union. We examine from both a normative perspective and by analysing rulings from National Regulatory Agencies empowered with supervision and enforcement duties by the 'Net Neutrality' Regulation. Drawing on behavioural economics and cognitive psychology literature, the paper suggests too much choice in zero-rating services can actually lead to less than optimal decision-making by consumers. Rational theory posits that more choice is good for consumers; yet, in reality, more choice can actually result in a less-informed decisions, inadvertently empowering more recognizable Content and Application Providers at the expense of lesser-known ones. From our critique of the rulings, we conclude with an overview or what amounts to permitted/prohibited zero-rating practices in the European Union and argue that a hybrid regulatory response-involving market-and principle-based regulation is needed alongside command-andcontrol rules to ensure zero-rating services do not amount to a material reduction in consumer choice.

Targeted advertising is the primary revenue stream for the largest online platforms that act as t... more Targeted advertising is the primary revenue stream for the largest online platforms that act as the Internet’s gatekeepers, such as Alphabet and Meta. The financial incentives drive targeted advertising towards maximizing the efficiency of algorithmically matching advertisements with consumers, which typically requires building fine-grained profiles that rely on consumers’ personal data. In the European Union, the protection of personal data is a fundamental right operationalized by the General Data Protection Regulation (GDPR), establishing the limits of targeted advertising to the extent that it relies on the processing of personal data. Nevertheless, as online interface design and fine-grained personalization allow platforms and other publishers new ways to influence consumers, targeted advertising is also associated with the potential for consumer manipulation.While the consumer protection framework in the EU is the primary field that protects consumers from manipulation, it has...

Oxford Handbook of Online Intermediary Liability, 2020

This chapter discusses the impact of free trade agreements (FTAs) on intermediary liability in La... more This chapter discusses the impact of free trade agreements (FTAs) on intermediary liability in Latin America, with special emphasis on the Digital Millennium Copyright Act’s (DMCA) provisions that have been included into every bilateral FTA the United States has entered into since 2002, thus promoting their inclusion in the national law of other countries. However, these provisions are controversial, and whether they drive the internet economy or create a more restrictive online space is a matter of debate. This chapter analyses the impact of such provisions in Latin American countries and the state of their implementation in national jurisdictions. In particular, this chapter reviews implementation and proposed implementation of the DMCA model in Chile, Costa Rica and other CAFTA bloc countries, Colombia, and Peru. It also discusses the failure of the Trans-Pacific Partnership Agreement to create new intermediary liability rules and how the same language was ultimately included in ...

Data Protection and Privacy, 2022

SSRN Electronic Journal, 2019

Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union... more Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union's 'Net Neutrality' Regulation. Conversely, 'negative' net neutrality violations, normally associated with the blocking and throttling of content that threatens an Internet Service Provider's business model, are strictly prohibited. With the European Commission set for a public consultation on zero-rating, and The Body of European Regulators for Electronic Communications set to issue updated guidelines on the practice, the paper assesses the present state of zero-rating in Europe, focusing on differentiation cases to assess what types of positive net neutrality violations could result in a "material reduction on consumer choice" for mobile consumers. As zero-rating is generally limited to mobile subscriptions that include data caps, the Office of Economic Development has warned regulators to be vigilant against practices that could result in users constantly monitoring their data usage or limiting access to nonzero-rated services. The practice of 'zero-rating' in Europe poses a unique challenge to regulatory authorities keen to protect the principle of net neutrality. While consumers perceive free access to certain content, applications and programs as beneficial, zero-rating also contravenes the general aims of the Regulation: that Internet traffic is managed by Internet Service Providers in a non-discriminatory manner and that consumer choice is protected. While the practice might be seen to benefit consumers, zero-rating can also affect the number of providers entering the market and compromise the Regulation's aim to "guarantee the continued functioning of the internet ecosystem as an engine of innovation". The paper examines the state of zero-rating services, with specific emphasis on positive net neutrality violations across the European Union. We examine from both a normative perspective and by analysing rulings from National Regulatory Agencies empowered with supervision and enforcement duties by the 'Net Neutrality' Regulation. Drawing on behavioural economics and cognitive psychology literature, the paper suggests too much choice in zero-rating services can actually lead to less than optimal decision-making by consumers. Rational theory posits that more choice is good for consumers; yet, in reality, more choice can actually result in a less-informed decisions, inadvertently empowering more recognizable Content and Application Providers at the expense of lesser-known ones. From our critique of the rulings, we conclude with an overview or what amounts to permitted/prohibited zero-rating practices in the European Union and argue that a hybrid regulatory response-involving market-and principle-based regulation is needed alongside command-andcontrol rules to ensure zero-rating services do not amount to a material reduction in consumer choice.

Edward Elgar Publishing eBooks, Apr 22, 2022

Vanderbilt Journal of Transnational Law, 2023

Targeted advertising is the primary revenue stream for the largest online platforms that act as t... more Targeted advertising is the primary revenue stream for the largest online platforms that act as the internet's gatekeepers, such as Alphabet and Meta. The financial incentives drive targeted advertising towards maximizing the efficiency of algorithmically matching advertisements with consumers, which typically requires building fine-grained profiles that rely on consumers' personal data. In the European Union (EU), the protection of personal data is a fundamental right operationalized by the General Data Protection Regulation (GDPR), establishing the limits of targeted advertising to the extent that it relies on the processing of personal data. Nevertheless, as online interface design and fine-grained personalization allow platforms and other publishers new ways to influence consumers, targeted advertising is also associated with the potential for consumer manipulation.

While the consumer protection framework in the EU is the primary field that protects consumers from manipulation, it has received little attention in academia in the context of targeted advertising when compared with the GDPR. In 2022, the EU adopted proposals for the Digital Services Act (DSA) and the Digital Markets Act (DMA), which contain consumer protection rules that directly limit targeted advertising. These developments in consumer protection law may fundamentally transform the internet, as its gatekeepers are now faced with a new legal regime that regulates their primary source of revenue. This Article provides an overview of the myriad of legislation that comprises the EU consumer protection framework-including how it intersects with the data protection framework-and analyzes how and the extent to which it coalesces to limit targeted advertising.

Proceedings of the 13th Pre-ICIS Workshop on Information Security and Privacy, San Francisco, Dec... more Proceedings of the 13th Pre-ICIS Workshop on Information Security and Privacy, San Francisco, December 13, 2018. 1 The Role of Privacy-Preserving Technologies in the Age of Big Data Daniel Bachlechner1 Competence Center Emerging Technologies, Fraunhofer ISI Karlsruhe, Germany Karolina La Fors Center for Law and Digital Technologies, Leiden University Leiden, The Netherlands Alan M. Sears Center for Law and Digital Technologies, Leiden University Leiden, The Netherlands ABSTRACT The potential social and economic benefits of big data applications are highlighted by researchers and the media alike. However, they can also have negative implications, which are not limited to privacy issues. With alarming regularity, massive data breaches become public. Measures taken by both policy makers and business leaders do not seem to be effective. Privacypreserving technologies have long been a hot topic in research, but they have not yet been widely integrated into big data solutions. To understa...

Computer Law & Security Review, 2018

and the Netherlands. The comparison focuses on five major themes: awareness and trust, government... more and the Netherlands. The comparison focuses on five major themes: awareness and trust, government policies for personal data protection, the applicable laws and regulations, implementation of those laws and regulations, and supervision and enforcement. The comparison of privacy and data protection regimes across the EU shows some remarkable findings, revealing which countries are frontrunners and which countries are lagging behind on specific aspects. For instance, the roles of and interplay between governments, civil rights organizations, and data protections authorities vary from country to country. Furthermore, with regard to privacy and data protection there are differences in the intensity and scope of political debates, information campaigns, media attention, and public debate. New concepts like privacy impact assessments, privacy by design, data breach notifications and big data are on the agenda in some but not in all countries.

Journal of Hospitality and Tourism Insights

PurposeThis viewpoint paper calls for research on the social impact that comes with implementing ... more PurposeThis viewpoint paper calls for research on the social impact that comes with implementing algorithmic pricing in hospitality and tourism, in particular online price discrimination. It seeks to broaden the literature on consumer backlash and corporate social responsibility (CSR) to include algorithmic pricing.Design/methodology/approachAs algorithmic pricing will become increasingly important in hospitality and tourism, the authors argue that scholarly attention should be directed to two topics.FindingsFirst, there is a need for research on how algorithmic pricing triggers consumer backlash and online firestorms, and how these can be detected, prevented, and mitigated. Second, the authors need to increase our understanding of how deception, misconduct, dishonesty, and injustice in algorithmic pricing impact CSR performance, especially when differential pricing is enticed by deceptive yet legal algorithmic applications of indirect behavioral “self-selection” mechanisms.Social i...

Journal of Revenue and Pricing Management, 2020

To date, pricing and revenue management literature has mostly concerned itself with how firms can... more To date, pricing and revenue management literature has mostly concerned itself with how firms can maximize revenue growth and minimize opportunity cost. Rarely has the ethical and legal nature of the field been subjected to substantial comment and discussion. This viewpoint article draws attention to some inherent ethical concerns and legal challenges that may come with future developments in pricing, in particular online personalized pricing, thereby seeking to initiate a broader discussion about issues such as dishonesty, unfairness, injustice, and misconduct in pricing and revenue management practices. Reflecting on how legislators and regulators in Europe seek to limit recent developments in personalized pricing, we argue that not much is to be expected from the legal system, at least not in the short run, with regard to guiding the pricing and revenue field in setting and implementing minimum standards of behavior. Scholarly attention should however not only be directed to the legal challenges of new forms of direct price discrimination, such as algorithmic personalized dynamic pricing, but also to the ethical and legal implications of more granular forms of indirect price discrimination, through which consumers will be allowed to 'freely' sort themselves into different microsegments, especially when the 'self-selection' is enticed by deceptive personalized applications of psychological pricing and neuromarketing.

Vanderbilt Journal of Transnational Law, 2020

Algorithms have become increasingly common, and with this development, so have algorithms that ap... more Algorithms have become increasingly common, and with this development, so have algorithms that approximate human speech. This has introduced new issues with which courts and legislators will have to grapple. Courts in the United States have found that search engine results are a form of speech that is protected by the Constitution, and cases in Europe concerning liability for autocomplete suggestions have led to varied results. Beyond these instances, insight into how courts handle algorithmic speech are few and far between.

By focusing on three categories of algorithmic speech, defined as curated production, interactive/responsive production, and semi-autonomous production, this Article analyzes these various forms of algorithmic speech within the international framework for freedom of expression. After a brief introduction of that framework and a look towards approaches to algorithmic speech in the United States, the Article then examines whether the creators or controllers of different forms of algorithms should be considered content providers or mere intermediaries, the determination of which ultimately has implications for liability, which is also explored. The Article then looks at possible interferences with algorithmic speech, and how such interferences may be examined under the three-part test-particular attention is paid to the balancing of rights and interests at play-in order to answer the question of the extent to which algorithmic speech is worthy of protection under international standards of freedom of expression. Finally, other relevant issues surrounding algorithmic speech are discussed that will have an impact going forward, many of which involve questions of policy and societal values that accompany granting algorithmic speech protection.

Columbia Science and Technology Law Review, 2020

As big data capabilities have increased, so too has the potential for price discrimination. Price... more As big data capabilities have increased, so too has the potential for price discrimination. Price discrimination occurs when sellers offer goods and services at different prices to different consumers. Profiles of consumers can be created based on a variety of factors, such as their location, past purchases or behaviors online, or, more frequently, a large number of factors that, when combined, enables sellers to serve tailored prices based on differences between consumer profiles. In addition to these algorithmic forms of price discrimination, simpler methods are also in use, such as basing prices solely on the basis of a consumer's IP address.

This article aims to provide a comprehensive mapping of the boundaries of online price discrimination in Europe. While few legal provisions speak directly to online price discrimination or personalized pricing, a number of areas of law likely have a bearing on the extent to which price discrimination is legally permitted. As such, this article will examine competition law, consumer protection law, data protection law, and non-discrimination law in order to determine where online price discrimination may constitute noncompliance with one of the relevant provisions, as well as to denote where it appears that the framework is ill-equipped to adequately address the practice. Practical and sociological aspects relating to both online price discrimination and the application of the legal frameworks in these areas are also incorporated.

Computer Law & Security Review, 2017

Although the protection of personal data is harmonized within the EU by Directive 95/46/EC and wi... more Although the protection of personal data is harmonized within the EU by Directive 95/46/EC and will be further harmonized by the General Data Protection Regulation (GDPR) in 2018, there are significant differences in the ways in which EU member states implemented the protection of privacy and personal data in national laws, policies, and practices. This paper presents the main findings of a research project that compares the protection of privacy and personal data in eight EU member states: France, Germany, the UK, Ireland, Romania, Italy, Sweden, and the Netherlands. The comparison focuses on five major themes: awareness and trust, government policies for personal data protection, the applicable laws and regulations, implementation of those laws and regulations, and supervision and enforcement.

The comparison of privacy and data protection regimes across the EU shows some remarkable findings, revealing which countries are front runners and which countries are lagging behind on specific aspects. For instance, the roles of and interplay between governments, civil rights organizations, and data protections authorities vary from country to country. Furthermore, with regard to privacy and data protection there are differences in the intensity and scope of political debates, information campaigns, media attention, and public debate. New concepts like privacy impact assessments, privacy by design, data breach notifications and big data are on the agenda in some but not all countries. Significant differences exist in (the levels of) enforcement by the different data protection authorities, due to different legal competencies, available budgets and personnel, policies, and cultural factors.

Writing primarily in 2013, Alan Sears examines different aspects of the international legal frame... more Writing primarily in 2013, Alan Sears examines different aspects of the international legal framework as to how freedom of expression over the Internet may be protected. Even though the Internet has largely incorporated the concept of freedom of expression from its inception, the need for such protection has become increasingly evident. States around the world have progressively cracked down on Internet speech, a trend highlighted by recent events occurring during the Arab Spring. Alan thus focuses on the Middle East when exploring how Internet governance may be shaped, and human rights and trade agreements may be utilized, in order to make sure that the freedom of expression over the Internet remains respected. He discusses the advantages and disadvantages of the different frameworks, suggests proposals for improvements, and argues for the importance of engaging with different stakeholders in decision-making processes to better meet this end.

http://scholarship.law.nd.edu/ndjicl/vol5/iss1/7/

This article is the result of an investigation into how Kenyan law impacts youth access to entrep... more This article is the result of an investigation into how Kenyan law impacts youth access to entrepreneurism, with a focus on how entrepreneurism may be used in order to alleviate the effects of poverty. Conducted through legal research and analyses of facts on the ground and the applicable laws; attorneys, government officials, NGOs, and youth were interviewed in order to gain a functional understanding of the effects of how these various laws and processes have created barriers to the entrepreneurial youth of Dandora, Kenya.

Books by Alan M Sears

Oxford Handbook of Online Intermediary Liability, 2020

This is a book chapter in the Oxford Handbook of Online Intermediary Liability. Free trade agree... more This is a book chapter in the Oxford Handbook of Online Intermediary Liability.

Free trade agreements (FTAs) signed by the United States in the current century have consistently included provisions attempting to harmonize copyright provisions, including the regulation of liability for internet intermediaries for online copyright infringement. The regulation in those agreements follows the model established in domestic federal law in the United States through the Digital Millennium Copyright Act (DMCA), which regulates certain conditions for liability exemptions for internet intermediaries for acts of copyright infringement taking place over the internet.

The DMCA was a largely innovative piece of legislation when it became effective in 1998, and was enacted as part of the implementation of two international agreements known as the ‘Internet Treaties’, signed under the World Intellectual Property Organization (WIPO) in 1996: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which were meant to adapt a traditional copyright framework so as to be able to address novel issues brought about by the information age.

The DMCA took the broad provisions of the WIPO Internet Treaties and implemented them with a higher degree of detail. At the time, several features were unique to the DMCA. Among them were its intermediary liability provisions. Every bilateral FTA—as well as a number of multilateral FTAs—the United States has entered into since 2002 has contained similar provisions, thus promoting their inclusion in the national law of other countries. However, these are controversial, and whether they drive the internet economy or create a more restrictive online space is a matter of debate. In this chapter, the impact of such provisions in Latin American countries will be analysed.

EU Personal Data Protection in Policy and Practice, 2019

In this book, the protection of personal data is compared for eight EU member states, namely Fran... more In this book, the protection of personal data is compared for eight EU member states, namely France, Germany, the United Kingdom, Ireland, Romania, Italy, Sweden and the Netherlands. The comparison of the countries is focused on government policies for the protection of personal data, the applicable laws and regulations, implementation of those laws and regulations, and supervision and enforcement.

Although the General Data Protection Regulation (GDPR) harmonizes the protection of personal data across the EU as of May 2018, its open norms in combination with cultural differences between countries result in differences in the practical implementation, interpretation and enforcement of personal data protection.

With its focus on data protection law in practice, this book provides in depth insights into how different countries deal with data protection issues. The knowledge and best practices from these countries provide highly relevant material for legal professionals, data protection officers, policymakers, data protection authorities and academics across Europe.

Bart Custers is Associate Professor and Director of Research at the Center for Law and Digital Technologies of the Leiden Law School at Leiden University, the Netherlands. Alan M. Sears, Francien Dechesne, Ilina Georgieva and Tommaso Tani are all affiliated to that same organization, of which Professor Simone van der Hof is the General Director.

Vanaf 2018 is binnen de EU de Algemene Verordening Gegevensbescherming (AVG) van kracht. Daarmee ... more Vanaf 2018 is binnen de EU de Algemene Verordening Gegevensbescherming (AVG) van kracht. Daarmee wordt zowel een versterking van de privacy van burgers als een gelijkwaardig niveau van bescherming in de gehele EU beoogd. De AVG bevat de kaders voor rechten en plichten van enerzijds personen wier gegevens worden verzameld en verwerkt en anderzijds van personen, bedrijven en overheidsinstellingen die de persoonsgegevens verzamelen en verwerken. Hoe de feitelijke bescherming eruitziet is echter niet alleen afhankelijk van de wettelijke kaders, maar ook van de verdere invulling en interpretatie die daaraan wordt gegeven en de wijze waarop handhaving plaatsvindt. De wet- en regelgeving op het gebied van privacy en de bescherming van persoonsgegevens kent veel open normen. Als gevolg van verschillen in wetgevingsstelsels en culturele verschillen wordt op uiteenlopende wijze aan deze open normen invulling gegeven. Dat roept de vraag op in welk land persoonsgegevens (en daarmee een belangrijk deel van iemands privacy) het beste zijn beschermd en hoe goed de bescherming van persoonsgegevens in Nederland is geregeld in vergelijking met andere landen. Bovendien wordt uit de verschillen duidelijk van welke landen iets te leren valt.

Edward Elgar Publishing eBooks, Apr 22, 2022

Social Science Research Network, 2019

Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union... more Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union's 'Net Neutrality' Regulation. Conversely, 'negative' net neutrality violations, normally associated with the blocking and throttling of content that threatens an Internet Service Provider's business model, are strictly prohibited. With the European Commission set for a public consultation on zero-rating, and The Body of European Regulators for Electronic Communications set to issue updated guidelines on the practice, the paper assesses the present state of zero-rating in Europe, focusing on differentiation cases to assess what types of positive net neutrality violations could result in a "material reduction on consumer choice" for mobile consumers. As zero-rating is generally limited to mobile subscriptions that include data caps, the Office of Economic Development has warned regulators to be vigilant against practices that could result in users constantly monitoring their data usage or limiting access to nonzero-rated services. The practice of 'zero-rating' in Europe poses a unique challenge to regulatory authorities keen to protect the principle of net neutrality. While consumers perceive free access to certain content, applications and programs as beneficial, zero-rating also contravenes the general aims of the Regulation: that Internet traffic is managed by Internet Service Providers in a non-discriminatory manner and that consumer choice is protected. While the practice might be seen to benefit consumers, zero-rating can also affect the number of providers entering the market and compromise the Regulation's aim to "guarantee the continued functioning of the internet ecosystem as an engine of innovation". The paper examines the state of zero-rating services, with specific emphasis on positive net neutrality violations across the European Union. We examine from both a normative perspective and by analysing rulings from National Regulatory Agencies empowered with supervision and enforcement duties by the 'Net Neutrality' Regulation. Drawing on behavioural economics and cognitive psychology literature, the paper suggests too much choice in zero-rating services can actually lead to less than optimal decision-making by consumers. Rational theory posits that more choice is good for consumers; yet, in reality, more choice can actually result in a less-informed decisions, inadvertently empowering more recognizable Content and Application Providers at the expense of lesser-known ones. From our critique of the rulings, we conclude with an overview or what amounts to permitted/prohibited zero-rating practices in the European Union and argue that a hybrid regulatory response-involving market-and principle-based regulation is needed alongside command-andcontrol rules to ensure zero-rating services do not amount to a material reduction in consumer choice.

Targeted advertising is the primary revenue stream for the largest online platforms that act as t... more Targeted advertising is the primary revenue stream for the largest online platforms that act as the Internet’s gatekeepers, such as Alphabet and Meta. The financial incentives drive targeted advertising towards maximizing the efficiency of algorithmically matching advertisements with consumers, which typically requires building fine-grained profiles that rely on consumers’ personal data. In the European Union, the protection of personal data is a fundamental right operationalized by the General Data Protection Regulation (GDPR), establishing the limits of targeted advertising to the extent that it relies on the processing of personal data. Nevertheless, as online interface design and fine-grained personalization allow platforms and other publishers new ways to influence consumers, targeted advertising is also associated with the potential for consumer manipulation.While the consumer protection framework in the EU is the primary field that protects consumers from manipulation, it has...

Oxford Handbook of Online Intermediary Liability, 2020

This chapter discusses the impact of free trade agreements (FTAs) on intermediary liability in La... more This chapter discusses the impact of free trade agreements (FTAs) on intermediary liability in Latin America, with special emphasis on the Digital Millennium Copyright Act’s (DMCA) provisions that have been included into every bilateral FTA the United States has entered into since 2002, thus promoting their inclusion in the national law of other countries. However, these provisions are controversial, and whether they drive the internet economy or create a more restrictive online space is a matter of debate. This chapter analyses the impact of such provisions in Latin American countries and the state of their implementation in national jurisdictions. In particular, this chapter reviews implementation and proposed implementation of the DMCA model in Chile, Costa Rica and other CAFTA bloc countries, Colombia, and Peru. It also discusses the failure of the Trans-Pacific Partnership Agreement to create new intermediary liability rules and how the same language was ultimately included in ...

Data Protection and Privacy, 2022

SSRN Electronic Journal, 2019

Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union... more Zero-rating is a permitted class of 'positive' net neutrality violations under the European Union's 'Net Neutrality' Regulation. Conversely, 'negative' net neutrality violations, normally associated with the blocking and throttling of content that threatens an Internet Service Provider's business model, are strictly prohibited. With the European Commission set for a public consultation on zero-rating, and The Body of European Regulators for Electronic Communications set to issue updated guidelines on the practice, the paper assesses the present state of zero-rating in Europe, focusing on differentiation cases to assess what types of positive net neutrality violations could result in a "material reduction on consumer choice" for mobile consumers. As zero-rating is generally limited to mobile subscriptions that include data caps, the Office of Economic Development has warned regulators to be vigilant against practices that could result in users constantly monitoring their data usage or limiting access to nonzero-rated services. The practice of 'zero-rating' in Europe poses a unique challenge to regulatory authorities keen to protect the principle of net neutrality. While consumers perceive free access to certain content, applications and programs as beneficial, zero-rating also contravenes the general aims of the Regulation: that Internet traffic is managed by Internet Service Providers in a non-discriminatory manner and that consumer choice is protected. While the practice might be seen to benefit consumers, zero-rating can also affect the number of providers entering the market and compromise the Regulation's aim to "guarantee the continued functioning of the internet ecosystem as an engine of innovation". The paper examines the state of zero-rating services, with specific emphasis on positive net neutrality violations across the European Union. We examine from both a normative perspective and by analysing rulings from National Regulatory Agencies empowered with supervision and enforcement duties by the 'Net Neutrality' Regulation. Drawing on behavioural economics and cognitive psychology literature, the paper suggests too much choice in zero-rating services can actually lead to less than optimal decision-making by consumers. Rational theory posits that more choice is good for consumers; yet, in reality, more choice can actually result in a less-informed decisions, inadvertently empowering more recognizable Content and Application Providers at the expense of lesser-known ones. From our critique of the rulings, we conclude with an overview or what amounts to permitted/prohibited zero-rating practices in the European Union and argue that a hybrid regulatory response-involving market-and principle-based regulation is needed alongside command-andcontrol rules to ensure zero-rating services do not amount to a material reduction in consumer choice.

Edward Elgar Publishing eBooks, Apr 22, 2022

Vanderbilt Journal of Transnational Law, 2023

Targeted advertising is the primary revenue stream for the largest online platforms that act as t... more Targeted advertising is the primary revenue stream for the largest online platforms that act as the internet's gatekeepers, such as Alphabet and Meta. The financial incentives drive targeted advertising towards maximizing the efficiency of algorithmically matching advertisements with consumers, which typically requires building fine-grained profiles that rely on consumers' personal data. In the European Union (EU), the protection of personal data is a fundamental right operationalized by the General Data Protection Regulation (GDPR), establishing the limits of targeted advertising to the extent that it relies on the processing of personal data. Nevertheless, as online interface design and fine-grained personalization allow platforms and other publishers new ways to influence consumers, targeted advertising is also associated with the potential for consumer manipulation.

While the consumer protection framework in the EU is the primary field that protects consumers from manipulation, it has received little attention in academia in the context of targeted advertising when compared with the GDPR. In 2022, the EU adopted proposals for the Digital Services Act (DSA) and the Digital Markets Act (DMA), which contain consumer protection rules that directly limit targeted advertising. These developments in consumer protection law may fundamentally transform the internet, as its gatekeepers are now faced with a new legal regime that regulates their primary source of revenue. This Article provides an overview of the myriad of legislation that comprises the EU consumer protection framework-including how it intersects with the data protection framework-and analyzes how and the extent to which it coalesces to limit targeted advertising.

Proceedings of the 13th Pre-ICIS Workshop on Information Security and Privacy, San Francisco, Dec... more Proceedings of the 13th Pre-ICIS Workshop on Information Security and Privacy, San Francisco, December 13, 2018. 1 The Role of Privacy-Preserving Technologies in the Age of Big Data Daniel Bachlechner1 Competence Center Emerging Technologies, Fraunhofer ISI Karlsruhe, Germany Karolina La Fors Center for Law and Digital Technologies, Leiden University Leiden, The Netherlands Alan M. Sears Center for Law and Digital Technologies, Leiden University Leiden, The Netherlands ABSTRACT The potential social and economic benefits of big data applications are highlighted by researchers and the media alike. However, they can also have negative implications, which are not limited to privacy issues. With alarming regularity, massive data breaches become public. Measures taken by both policy makers and business leaders do not seem to be effective. Privacypreserving technologies have long been a hot topic in research, but they have not yet been widely integrated into big data solutions. To understa...

Computer Law & Security Review, 2018

and the Netherlands. The comparison focuses on five major themes: awareness and trust, government... more and the Netherlands. The comparison focuses on five major themes: awareness and trust, government policies for personal data protection, the applicable laws and regulations, implementation of those laws and regulations, and supervision and enforcement. The comparison of privacy and data protection regimes across the EU shows some remarkable findings, revealing which countries are frontrunners and which countries are lagging behind on specific aspects. For instance, the roles of and interplay between governments, civil rights organizations, and data protections authorities vary from country to country. Furthermore, with regard to privacy and data protection there are differences in the intensity and scope of political debates, information campaigns, media attention, and public debate. New concepts like privacy impact assessments, privacy by design, data breach notifications and big data are on the agenda in some but not in all countries.

Journal of Hospitality and Tourism Insights

PurposeThis viewpoint paper calls for research on the social impact that comes with implementing ... more PurposeThis viewpoint paper calls for research on the social impact that comes with implementing algorithmic pricing in hospitality and tourism, in particular online price discrimination. It seeks to broaden the literature on consumer backlash and corporate social responsibility (CSR) to include algorithmic pricing.Design/methodology/approachAs algorithmic pricing will become increasingly important in hospitality and tourism, the authors argue that scholarly attention should be directed to two topics.FindingsFirst, there is a need for research on how algorithmic pricing triggers consumer backlash and online firestorms, and how these can be detected, prevented, and mitigated. Second, the authors need to increase our understanding of how deception, misconduct, dishonesty, and injustice in algorithmic pricing impact CSR performance, especially when differential pricing is enticed by deceptive yet legal algorithmic applications of indirect behavioral “self-selection” mechanisms.Social i...

Journal of Revenue and Pricing Management, 2020

To date, pricing and revenue management literature has mostly concerned itself with how firms can... more To date, pricing and revenue management literature has mostly concerned itself with how firms can maximize revenue growth and minimize opportunity cost. Rarely has the ethical and legal nature of the field been subjected to substantial comment and discussion. This viewpoint article draws attention to some inherent ethical concerns and legal challenges that may come with future developments in pricing, in particular online personalized pricing, thereby seeking to initiate a broader discussion about issues such as dishonesty, unfairness, injustice, and misconduct in pricing and revenue management practices. Reflecting on how legislators and regulators in Europe seek to limit recent developments in personalized pricing, we argue that not much is to be expected from the legal system, at least not in the short run, with regard to guiding the pricing and revenue field in setting and implementing minimum standards of behavior. Scholarly attention should however not only be directed to the legal challenges of new forms of direct price discrimination, such as algorithmic personalized dynamic pricing, but also to the ethical and legal implications of more granular forms of indirect price discrimination, through which consumers will be allowed to 'freely' sort themselves into different microsegments, especially when the 'self-selection' is enticed by deceptive personalized applications of psychological pricing and neuromarketing.

Vanderbilt Journal of Transnational Law, 2020

Algorithms have become increasingly common, and with this development, so have algorithms that ap... more Algorithms have become increasingly common, and with this development, so have algorithms that approximate human speech. This has introduced new issues with which courts and legislators will have to grapple. Courts in the United States have found that search engine results are a form of speech that is protected by the Constitution, and cases in Europe concerning liability for autocomplete suggestions have led to varied results. Beyond these instances, insight into how courts handle algorithmic speech are few and far between.

By focusing on three categories of algorithmic speech, defined as curated production, interactive/responsive production, and semi-autonomous production, this Article analyzes these various forms of algorithmic speech within the international framework for freedom of expression. After a brief introduction of that framework and a look towards approaches to algorithmic speech in the United States, the Article then examines whether the creators or controllers of different forms of algorithms should be considered content providers or mere intermediaries, the determination of which ultimately has implications for liability, which is also explored. The Article then looks at possible interferences with algorithmic speech, and how such interferences may be examined under the three-part test-particular attention is paid to the balancing of rights and interests at play-in order to answer the question of the extent to which algorithmic speech is worthy of protection under international standards of freedom of expression. Finally, other relevant issues surrounding algorithmic speech are discussed that will have an impact going forward, many of which involve questions of policy and societal values that accompany granting algorithmic speech protection.

Columbia Science and Technology Law Review, 2020

As big data capabilities have increased, so too has the potential for price discrimination. Price... more As big data capabilities have increased, so too has the potential for price discrimination. Price discrimination occurs when sellers offer goods and services at different prices to different consumers. Profiles of consumers can be created based on a variety of factors, such as their location, past purchases or behaviors online, or, more frequently, a large number of factors that, when combined, enables sellers to serve tailored prices based on differences between consumer profiles. In addition to these algorithmic forms of price discrimination, simpler methods are also in use, such as basing prices solely on the basis of a consumer's IP address.

This article aims to provide a comprehensive mapping of the boundaries of online price discrimination in Europe. While few legal provisions speak directly to online price discrimination or personalized pricing, a number of areas of law likely have a bearing on the extent to which price discrimination is legally permitted. As such, this article will examine competition law, consumer protection law, data protection law, and non-discrimination law in order to determine where online price discrimination may constitute noncompliance with one of the relevant provisions, as well as to denote where it appears that the framework is ill-equipped to adequately address the practice. Practical and sociological aspects relating to both online price discrimination and the application of the legal frameworks in these areas are also incorporated.

Computer Law & Security Review, 2017

Although the protection of personal data is harmonized within the EU by Directive 95/46/EC and wi... more Although the protection of personal data is harmonized within the EU by Directive 95/46/EC and will be further harmonized by the General Data Protection Regulation (GDPR) in 2018, there are significant differences in the ways in which EU member states implemented the protection of privacy and personal data in national laws, policies, and practices. This paper presents the main findings of a research project that compares the protection of privacy and personal data in eight EU member states: France, Germany, the UK, Ireland, Romania, Italy, Sweden, and the Netherlands. The comparison focuses on five major themes: awareness and trust, government policies for personal data protection, the applicable laws and regulations, implementation of those laws and regulations, and supervision and enforcement.

The comparison of privacy and data protection regimes across the EU shows some remarkable findings, revealing which countries are front runners and which countries are lagging behind on specific aspects. For instance, the roles of and interplay between governments, civil rights organizations, and data protections authorities vary from country to country. Furthermore, with regard to privacy and data protection there are differences in the intensity and scope of political debates, information campaigns, media attention, and public debate. New concepts like privacy impact assessments, privacy by design, data breach notifications and big data are on the agenda in some but not all countries. Significant differences exist in (the levels of) enforcement by the different data protection authorities, due to different legal competencies, available budgets and personnel, policies, and cultural factors.

Writing primarily in 2013, Alan Sears examines different aspects of the international legal frame... more Writing primarily in 2013, Alan Sears examines different aspects of the international legal framework as to how freedom of expression over the Internet may be protected. Even though the Internet has largely incorporated the concept of freedom of expression from its inception, the need for such protection has become increasingly evident. States around the world have progressively cracked down on Internet speech, a trend highlighted by recent events occurring during the Arab Spring. Alan thus focuses on the Middle East when exploring how Internet governance may be shaped, and human rights and trade agreements may be utilized, in order to make sure that the freedom of expression over the Internet remains respected. He discusses the advantages and disadvantages of the different frameworks, suggests proposals for improvements, and argues for the importance of engaging with different stakeholders in decision-making processes to better meet this end.

http://scholarship.law.nd.edu/ndjicl/vol5/iss1/7/

This article is the result of an investigation into how Kenyan law impacts youth access to entrep... more This article is the result of an investigation into how Kenyan law impacts youth access to entrepreneurism, with a focus on how entrepreneurism may be used in order to alleviate the effects of poverty. Conducted through legal research and analyses of facts on the ground and the applicable laws; attorneys, government officials, NGOs, and youth were interviewed in order to gain a functional understanding of the effects of how these various laws and processes have created barriers to the entrepreneurial youth of Dandora, Kenya.

Oxford Handbook of Online Intermediary Liability, 2020

This is a book chapter in the Oxford Handbook of Online Intermediary Liability. Free trade agree... more This is a book chapter in the Oxford Handbook of Online Intermediary Liability.

Free trade agreements (FTAs) signed by the United States in the current century have consistently included provisions attempting to harmonize copyright provisions, including the regulation of liability for internet intermediaries for online copyright infringement. The regulation in those agreements follows the model established in domestic federal law in the United States through the Digital Millennium Copyright Act (DMCA), which regulates certain conditions for liability exemptions for internet intermediaries for acts of copyright infringement taking place over the internet.

The DMCA was a largely innovative piece of legislation when it became effective in 1998, and was enacted as part of the implementation of two international agreements known as the ‘Internet Treaties’, signed under the World Intellectual Property Organization (WIPO) in 1996: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which were meant to adapt a traditional copyright framework so as to be able to address novel issues brought about by the information age.

The DMCA took the broad provisions of the WIPO Internet Treaties and implemented them with a higher degree of detail. At the time, several features were unique to the DMCA. Among them were its intermediary liability provisions. Every bilateral FTA—as well as a number of multilateral FTAs—the United States has entered into since 2002 has contained similar provisions, thus promoting their inclusion in the national law of other countries. However, these are controversial, and whether they drive the internet economy or create a more restrictive online space is a matter of debate. In this chapter, the impact of such provisions in Latin American countries will be analysed.

EU Personal Data Protection in Policy and Practice, 2019

In this book, the protection of personal data is compared for eight EU member states, namely Fran... more In this book, the protection of personal data is compared for eight EU member states, namely France, Germany, the United Kingdom, Ireland, Romania, Italy, Sweden and the Netherlands. The comparison of the countries is focused on government policies for the protection of personal data, the applicable laws and regulations, implementation of those laws and regulations, and supervision and enforcement.

Although the General Data Protection Regulation (GDPR) harmonizes the protection of personal data across the EU as of May 2018, its open norms in combination with cultural differences between countries result in differences in the practical implementation, interpretation and enforcement of personal data protection.

With its focus on data protection law in practice, this book provides in depth insights into how different countries deal with data protection issues. The knowledge and best practices from these countries provide highly relevant material for legal professionals, data protection officers, policymakers, data protection authorities and academics across Europe.

Bart Custers is Associate Professor and Director of Research at the Center for Law and Digital Technologies of the Leiden Law School at Leiden University, the Netherlands. Alan M. Sears, Francien Dechesne, Ilina Georgieva and Tommaso Tani are all affiliated to that same organization, of which Professor Simone van der Hof is the General Director.

Vanaf 2018 is binnen de EU de Algemene Verordening Gegevensbescherming (AVG) van kracht. Daarmee ... more Vanaf 2018 is binnen de EU de Algemene Verordening Gegevensbescherming (AVG) van kracht. Daarmee wordt zowel een versterking van de privacy van burgers als een gelijkwaardig niveau van bescherming in de gehele EU beoogd. De AVG bevat de kaders voor rechten en plichten van enerzijds personen wier gegevens worden verzameld en verwerkt en anderzijds van personen, bedrijven en overheidsinstellingen die de persoonsgegevens verzamelen en verwerken. Hoe de feitelijke bescherming eruitziet is echter niet alleen afhankelijk van de wettelijke kaders, maar ook van de verdere invulling en interpretatie die daaraan wordt gegeven en de wijze waarop handhaving plaatsvindt. De wet- en regelgeving op het gebied van privacy en de bescherming van persoonsgegevens kent veel open normen. Als gevolg van verschillen in wetgevingsstelsels en culturele verschillen wordt op uiteenlopende wijze aan deze open normen invulling gegeven. Dat roept de vraag op in welk land persoonsgegevens (en daarmee een belangrijk deel van iemands privacy) het beste zijn beschermd en hoe goed de bescherming van persoonsgegevens in Nederland is geregeld in vergelijking met andere landen. Bovendien wordt uit de verschillen duidelijk van welke landen iets te leren valt.

Model Law on Access to Information for Africa and other regional instruments: Soft law and human rights in Africa, 2018

The Model Law on Access to Information for Africa portends a great opportunity in the promotion a... more The Model Law on Access to Information for Africa portends a great opportunity in the promotion and protection of access to information in the region. The effective implementation of such a model law could benefit by looking towards other regional systems and how different strategies were used to advance legislation. In the Americas, there had been a progressive trend in the legal recognition of the right to access public information and the implementation of access to information legislation at the national level, and in 2010, the Organization of American States (OAS), with the support of civil society experts, developed a Model Law on Access to Information as well as an implementation guide for use by governments. This legislation, the Model Law, and the work of civil society have been instrumental in influencing the states in the region. It is thus through the lens that this chapter aims to provide strategies for the implementation of the Model Law in Africa. The chapter thus examines the adoption process of the model laws in both the Americas and Africa. It also discusses the main differences between the Inter-American Model Law and the African Model Law. We also consider litigation and advocacy strategies, among others, developed in the Americas, taking into account the differing political, social, economic and cultural contexts of both continents, which may shed some light on the development of access to information legislation in countries in Africa and the implementation of the African Model Law.