With the explosion of computer technology, vastly more and more varied types of data related to individuals are being disseminated online, often without their consent. While intermediary publishers are not the initial and immediate cause of this, they generally play a contributory role and engage in further semi- autonomous processing such as organizing or promoting content. Seeking to synthetically balance the competing purposes which underlie these three legal frameworks, this article argues that greater responsibility should flow from more autonomous control but that some shielding is still necessary for all intermediary publishers. Detailed elaboration of the resulting duties must also take account of the seriousness of the potential interference with competing rights and, in this regard, should give weight to the divergent resource capacity of otherwise similarly situated actors. Vastly more and more varied types of personal data are being published than ever before and such information is often subject to related but additional processing that promotes, aggregates, organizes and enables the ready retrieval of such content.
It is especially popular amongst law Europe logic mx pornography, who routinely use its user-friendly search engines to write assignments and briefs. More generally, they could also explicitly Europe logic mx pornography that any service engaged in publication-related processing directly linked to initial publication performed by others benefits from the right to freedom of expression and should only be subject to such an ambit of responsibility as can reasonably be expected of them given the need to achieve a balance between their operational needs and the right to the protection of personal data. This finding, however, has not yet resulted in court action. Sexy women wearing high heels Johnson stars as a retired football superstar trying to reinvent himself as a financial manager for current platers in sun-soaked Miami. A young woman grieving for her mother befriends a lonely piano teacher whose affection masks a disturbing and dangerous obsession.
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Set in an alternate history of , Watchmen brings the masked vigilante world featured in the iconic graphic novel into the present day.
- Pornography often abbreviated porn is the portrayal of sexual subject matter for the exclusive purpose of sexual arousal.
- Pornography in Europe has been dominated by a few pan-European producers and distributors, the most notable of which is the Private Media Group that successfully claimed the position previously held by Color Climax Corporation in the early s.
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With the explosion of computer technology, vastly more and more varied types of data related to individuals are being disseminated online, often without their consent.
While intermediary publishers are not the initial and immediate cause of this, they generally play a contributory role and engage in further semi- autonomous processing such as organizing or promoting content.
Seeking to synthetically balance the competing purposes which underlie these three legal frameworks, this article argues that greater responsibility should flow from more autonomous control but that some shielding is still necessary for all intermediary publishers. Detailed elaboration of the resulting duties must also take account of the seriousness of the potential interference with competing rights and, in this regard, should give weight to the divergent resource capacity of otherwise similarly situated actors.
Vastly more and more varied types of personal data are being published than ever before and such information is often subject to related but additional processing that promotes, aggregates, organizes and enables the ready retrieval of such content.
The human rights impact of these developments have been ambiguous. While the enjoyment of freedom of expression 1 as well as associated rights such as freedom to conduct a business 2 has been hugely enhanced, individual protective rights over personal data 3 including the right to respect for private life and reputation 4 have generally suffered.
These radical developments have resulted from two very different types of actor, labelled hereinafter as original publishers and intermediary publishers. Although these actors are sometimes substantial organizations, they now primarily comprise hundreds of millions of natural persons who act in a non-professional capacity.
These original publishers often publish personal data relating not only to themselves but also to third-party natural persons and it is with this latter category that this article concerns itself.
As will be seen, this category is conceptually broad, ranging from those who perform limited acts explicitly under the instruction of original publishers to others who engage in far-reaching and essentially autonomous processing. Meanwhile, turning to questions of scale, although some intermediary publishers are small-scale, the majority of such processing is performed by substantial and sometimes enormous organizations.
This article concerns itself exclusively with the latter dimension, first through an essentially descriptive analysis of not only legislation but also Union and national-level case law and then through forwarding a new synthetic normative approach as to how the law should be interpreted and applied going forward.
Moreover, while this law does contains important derogatory provisions, these have only been explicitly deployed in relation to the substantive as opposed to ambit of responsibility dimension of this problem. Reflecting a broad interpretative approach, case law has found that this shield extends to a wide variety of intermediary publishers including blog platforms and social networking sites.
A minority of Member States have also legislated for a generally cognate shield covering information location tools such as search engines. In lieu, this article sets out a new synthesis of these three legal frameworks which develops along three dimensions.
Secondly, and at a conceptual level, the core definitions found within both codified data protection and intermediary shield law are mined to ensure that they all perform relevant work and none are over-stretched so as to unduly colonize this space. Following some definitional and historical background in the next section, the article descriptively explores current legislation and case law, looking first at the formal applicability of codified intermediary shield and data protection law and then at the specification of intermediary publisher responsibility under both of these frameworks.
Finally, the last section sets out some overarching conclusions. Intermediary publishers have been integral to public online systems right from their genesis in the s and s. Many of these services have tremendous reach and are underpinned by phenomenal resources. To ground the analysis, it is important to descriptively explore the applicability of the two key statutory frameworks in this area namely, codified data protection and the codified intermediary shields and, following on from this, also the specification of intermediary publisher responsibility under each of these.
This section does so through an analysis not only of the formal legal provisions found in each codified framework but also case law at both Union level and in seven out of the eight most populous EU Member States.
European data protection first emerged in the s as an interventionist response to the perceived threat now significantly realized that computerization including computerized networks might pose to the privacy and related personal rights of natural persons. It applies from 25 May It defined all these terms broadly. The Directive did not grant Member States any discretion as regards its material scope and essential definitions 33 and, in general, these provisions were faithfully transposed.
Thus, although Spanish courts have recently found that this was at least not proved in relation to the blog hosting service Google Blogger, 37 such status has been ascribed to the following operators: a blogging service shown to organize posts anti-chronologically over time and with terms allowing it to suspend transmission in case of abuse, In the main, the findings here have been quite general. In contrast, at least in the Google Spain 46 and Google Video 47 cases, which concerned search engines and video-sharing services respectively, they targeted particular publication-related processing operations.
In significant contrast to the scheme implemented in the USA 51 and favoured by some civil society groups, 52 the resulting shields are narrowly focused on three discrete intermediary activities. However, in further elucidation, the Court adopted a rather liberal approach to these limits finding that, while active assistance could vitiate the shield, 80 the exercise of generic control over a service would not do so.
Turning to the national level, for reasons of both practicality and focus, consideration of jurisprudence on the interface between the shields and intermediary publishers will be confined to cases with data protection as a cause of action.
In some of these cases, such causes of action have been excluded from the shields entirely, usually 82 but not invariably 83 through an explicit reference to the data protection clause. Meanwhile, in the merely interlocutory decision of Mosley v Google the England and Wales High Court left this issue open.
In Spickmich , the Bundesgerichtshof stated that, by organizing ratings, this teaching evaluation website may have adopted the content, thus bringing its activity outside of the shields; ultimately, however, it found this did not need to be decided. It is a cardinal principle that the e-commerce intermediary shields do not establish legal responsibility but only set out certain protections against those which otherwise would apply. Article 15 2 also specifically allows Member States to establish obligations on services to promptly inform competent authorities of alleged illegality or, in the case of hosts, even to provide on request information enabling the identification of those with whom they had storage agreements.
To date, CJEU case law in this area has not only been confined to intellectual property disputes but has also not yet provided anything like a comprehensive interpretation of all relevant provisions.
In both Mosley v Google and AY v Facebook , the Court found that, even if this prohibition applied to data protection, the blocking of specified illegal sexual images on Google search and sexualized images of the data subject as a child on Facebook respectively might well not amount to general monitoring but only to a permissible specific blocking of content.
These important considerations will be addressed towards the end of the next subsection which turns to consider the specification of legal responsibility under data protection law. Turning to the national level, case law here remains rather diverse.
A number of decisions involving evaluation or profiling sites of various sorts have mandated a very broad ambit of responsibility. For example, in the Note2be.
Ambit of responsibility issues have been analysed most extensively in relation to generalized search engines. Even prior to Google Spain , three French decisions from , and had explored aspects of this question. In the first, an individual sought to require Google to ensure that a pornographic video in which she appeared was not indexed against her name coupled with further specified terms linked to pornography.
While acknowledging that it would be impossible for a search engine to carry out an ex ante review of the sites which it indexed, the Tribunal de Grande Instance de Montpellier found that Google was capable after generic notification of searching out the precise links in which the video appeared and should deindex accordingly. Both claims were upheld. In particular, a few recent German, Italian and UK cases have explored whether an individual with a well-founded objection to the indexing of certain data can fix a search engine with wider preventative duties than simply deindexing specified individual links at one point in time.
While some such links were deindexed by Google, this information was regularly reposted at the same website; as a result, the subject sought to prevent Google linking anywhere to the site in a nominative search. Although rejecting this, the Court held that Google had to ensure after notification that the actual information in question, and not just specific links, were permanently removed or filtered. Finally, the Italian Corte di Cassazione Google Video judgment of held that, although data protection law did apply to this video-sharing service, it would only become a controller of the uploaded data after notification of the fact that the information was illegally published and it had failed to immediately remove it.
As can be seen in the descriptive analysis above, although codified data protection and intermediary shield law were originally conceived as self-contained and separate legal areas, intermediary publisher jurisprudence increasingly fuses these frameworks, while also emphasizing the need to ensure a proportionate balance between rights under general human rights law.
Unfortunately, however, case law specifying the responsibility of intermediary publishers as regard third-party personal data remains incomplete, fragmented and, in particular as regards those parts focused on the data protection law itself, inconsistent and sometimes unbalanced. Given this, it is vital to bring more coherence and balance to the delimitation of ambit of responsibility here through a new and primarily interpretative synthesis of the three legal frameworks operating in this area.
As argued and developed below, such a synthesis should have three dimensions. First, some overarching principles of interpretation need to be developed to reconcile the core ends that these three legal frameworks seek to pursue. Secondly, at a conceptual level, the various definitional concepts found within codified data protection and intermediary shield law should be fully deployed so that they all perform relevant work and none are excessively stretched such that they unduly dominate or colonize this space.
Finally, these two dimensions must to be brought together in a final integrative dimension. Looking first to the development of overarching principles, it is clear that the core ends of these three legal frameworks are in substantial tension.
These often competing ends may be synthesized or reconciled by the following three interlinked and overarching principles. First, that as an intermediary publisher exercises more autonomous control over processing, so the basis for it being subject to the various duties set out in codified data protection law becomes stronger and the legitimacy of deploying codified intermediary shield law to severely limit these is in contrast weaker.
Nevertheless, and secondly, that even when such codified intermediary provisions are entirely inapplicable, some ambit of responsibility shields may remain necessary to safeguard freedom of expression and related rights. Given this, and in line with the first two principles included within the first dimension, the basic ambit of responsibility should be primarily structured according to, and increase along, this spectrum.
Nevertheless, in light of the second and third principles above, the ambits of responsibility arising from this structure must also be reconciled with freedom of expression and, moreover, the detailed elaboration of duties must allow for account to be taken of the divergent resource capacity of even otherwise similarly situated intermediary publishers.
This first category encompasses an important, albeit increasingly less central, subset of intermediary publishers whose publication activity takes place under the direct instruction of an another original or indeed intermediary publisher. Examples include not only website but also some forms of blog maintenance.
Turning to an overarching rights analysis, that compliance with substantive data protection is not the direct responsibility of such actors flows appropriately from the essentially dependent nature of their activities. At the same time, the possibility of fixing them with limited injunctive duties reflects the fact that this may be necessary in particular cases to effectively vindicate the right to data protection.
While truly anonymous publication poses a formidable barrier to such direct redress, it is an integral part of freedom of expression and further has a clear link to the right of privacy and therefore data protection itself. This could be considered to violate the essence of the right to anonymous expression and, in any case, would certainly constitute a disproportionate limitation on it in particular cases.
Given this, the use of any such derogation should be made subject to appropriate safeguards such as requiring that these processors after notice block or erase manifestly illegal content without waiting to be fixed with injunctive relief.
Clearly, this reveals considerable tension between conceptualization of the concept of agency in these two bodies of law. Going forward, these divergent understandings should be synthesized through crafting a stable and balanced understanding of what it means to be both an intermediary host and a personal data controller. In light of the first stipulation, it is imperative that data protection law be disapplied to the extent that it fixes host controllers with direct ex ante liability for illegalities arising from the processing of personal data on their site.
If so, provisions here could be limited to a transparent arrangement detailing the responsibilities of users themselves to ensure that the material initially uploaded on the service was lawful under data protection. In principle, however, such responsibilities are not inconsistent with the duties of care logic in the host intermediary shield, have already been recognized in a number of cases which give close attention to the structure of European data protection and need not necessarily be interpreted in a way which disproportionately impacts freedom of expression.
Some other default ex post rights, however, do have much more potential to disproportionately impact freedom of expression.
Given this, Member States should explicitly provide for necessary and proportionate limitations on such these rights, while still ensuring the essence of these rights to transparency and rectification are preserved. Given this, the failure to provide for any shield here would likely constitute a disproportionate burden on freedom of expression and cognate rights. Albeit with disappointingly little explication of its rationale, the CJEU addressed such dilemmas specifically as regards generalized search engines in its seminal Google Spain judgment.
Moreover, it is also crucial to recognize that, although Google Spain focused on nominative indexing, such activity should not only be construed broadly but is in any case but one example of processing with a sufficiently additionally impactful potential to trigger controller responsibilities even in cases when this threshold does apply. Non-nominative examples of processing clearly liable to have significant and additional impact include indexing by reference to an individual image or another obvious non-nominative identifier such as a personal telephone number.
Furthermore, the regulation of processing factually undertaken by such an independent intermediary which does not meet this threshold must also be determined; in this regard, it would seem important that regulators and ultimately courts are still able to issue specific injunctive relief here, thereby treating these actors as quasi-processors in this context.
As a result, it would be reasonable in the interests of freedom of expression to provide for an essentially cognate limitation of its ambit of responsibility. For example, such a service should be expected to take steps to ensure that terms linking a data subject with highly intimate and pejorative subject matter are not suggested via autocompletion technology without a check having been undertaken to ensure that this is plausibly legally justifiable. Similarly, if a search engine was put on constructive notice that a certain website was fundamentally orientated towards the publication of seriously and clearly illegal content eg revenge pornography , it should adopt protective measures against this such as ensuring that relevant links are placed very low in search results or even through undertaking a legal check prior to indexing.
On the other hand, however, services that are predicated on autonomously processing specific types of personal data in a particular way should be expected to assume a greater level of responsibility as regards its legality.
For example, such services should not be exempted from the requirement to publish, in an easily accessible form, transparency information specifying the purposes of processing, the categories of personal data, the legitimate interests pursued or other legal basis for processing , the rights of data subjects to exercise their ex ante rights and the right to lodge a complaint with a regulator. At the same time, such a service should still be responsible for ensuring that any processing which it positively intended was legitimate, that subject rights were honoured ex post , that violations of relevant standards were policed eg by suspending accounts of users in repeated violation and that any accidental but systematic illegalities eg the widespread upload of sensitive data without a legal base were robustly addressed.
A specialized search engine targeting specific types of personal data such as telephone numbers and email addresses should similarly be able to presumptively rely on the accuracy and initial legitimacy of data sourced from reputable original publishers elsewhere on the web.
Nevertheless, again, such services should still be responsible for publishing basic transparency information, ensuring that the intended additional processing making the data more accessible and retrievable is itself lawful, that subject rights are honoured ex post and that any accidental but systematic legal issues are dealt with eg by ceasing to index data from sites with a track record of sourcing information illegitimately.
The qualifications it sets down also sit in tension with the provisions of European data protection as currently codified. The question therefore arises as to whether, and if so, how Member States might legislatively address these issues through Article 85 1 of the new Regulation, albeit bearing in mind that any implied vires beyond use of the other limited derogations would need to be interpreted narrowly and strictly.
However, since the entirety of data protection sits in tension with freedom of expression, provisions such as these run the risk destabilizing this regime across the board. Any application to particular circumstances is also likely to remain rather opaque and unpredictable.
Given this, provisions directly targeted to independent intermediaries remain critical.
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