“Opt in” and “opt out” mechanisms in the internet era – towards a common theory

In order to provide for adequate legal protection mainly in mass-transactions on the internet, both the legislature and private parties increasingly, resort to so-called “opt in” and “opt out” mechanisms. Whether or not an “opt in” or an “opt out” mechanism is used is often decided on a case-by-case basis. The same is true regarding the circumstances under which private parties are or should be allowed to resort to “opt out” mechanisms, and if so, what restrictions should safeguard the free will of the addressees of such mechanisms. This paper argues that the existing “opt in” and “opt out” schemes should not be regarded and discussed as isolated phenomena. Rather, they should be analyzed from the viewpoint of a common underlying legal theory which builds on the common character of the underlying regulatory structure of all “opt in” and “opt out” schemes. This requires a complex matrix which comprises not only the opposites of “in” and “out”, but also of “active” and “inactive”, of “preference” and “non-preference” for the respective default rules, as well as of “ex ante” and “ex post” enforcement of the law. It also involves normative, economic, psychological and, last but not least, technical issues.     

Banking in the cloud: Part 3 – contractual issues

This paper looks at EU banks' use of public cloud computing services. It is based primarily on anonymised interviews with banks, cloud providers, advisers, and financial services regulators. The findings are presented in three parts. Part 1 of this paper explored the extent to which banks operating in the EU, including global banks, use public cloud computing services. Part 2 of this paper covered the main legal and regulatory issues that may affect banks' use of cloud services.Part 3 looks at the key contractual issues that arise in negotiations between banks and cloud service providers, including data protection requirements, complexities caused by the layering of cloud services, termination, service changes, and liability. It also presents the overall conclusion derived from the studies conducted, as set out in the three parts of the paper.All three parts of the paper can be accessed via Computer Law and Security Review's page on ScienceDirect at: http://www.sciencedirect.com/science/journal/02673649?sdc=2. The full list of sources is available via the same link and will be printed at the end of this part of the article.     

An MP's role in the internet Era – The impact of e-newsletters

The role of MPs changes over time. Commentators have identified five separate roles that an MP may carry out for which communication with constituents may be a key factor in determining the success of an MP. One of the latest, and currently underdeveloped, forms of direct political communication to constituents is e-newsletters from MPs. This article addresses how MPs are using their e-newsletter to help fulfil each of their parliamentary roles. A content analysis of the e-newsletters of seven MPs sent out regularly over a 1-year period from April 2003 to March 2004 was conducted. The data found that e-newsletters best helped fulfil both the political and non-political aspects of the constituency role. However, the article concludes that e-newsletter communication is primarily one-way, but that if it was two-way it might help MPs in all of their roles.     

‘Welcome to the rape camp’: Sexual exploitation and the internet in cambodia

Abstract

Summary: This article reports a piece of original research into the links between the trafficking in women and children across the globe and how such trafficking practices have been facilitated by developments in technology and telecommunications. The connections between prostitution in the Mekong Sub-Region, pornography on the Internet, and sex tourism have also been researched, based on the experiences of women and children and the men who exploit them.     

Finding a voice – the feasibility and impact of setting up a community choir in a forensic secure setting

This study reports on the feasibility and impact of running a choir for forensic psychiatric inpatients, staff and members of the local community, within the confines of a medium secure psychiatric unit. The choir ran between October and December 2013. Eight weekly workshops and a final concert performance were evaluated through participant observation and focus groups held with the participants. Between 12 and 16 male and female patients attended each workshop and the final concert. All participating patients had received a diagnosis of schizophrenia, schizo-affective disorder or personality disorder, all had committed serious violent or sexual offences and all were legally detained and receiving treatment in a forensic medium or low secure ward, under the Mental Health Act (England and Wales). Considerable benefits were reported by patients, as well as by the participating community choir members and staff. Primary benefits reported by patients included the following: improved happiness and well-being; increased confidence and self-esteem; greater emotional connectedness and reduced sense of stigma. Participating staff also reported increased feelings of well-being and happiness, greater tolerance and more positive perceptions of the functioning and capabilities of forensic psychiatric patients. The longer term benefits of music participation on the mental health and social functioning of forensic psychiatric patients require further investigation.     

‘From weird to wired’: MPs,the internet and representative politics in the UK

On 14 May 2002, the House of Commons voted on proposals put forward by the Modernisation Select Committee for reform of the departmental select committee system. This article examines the origins of those proposals, and the outcome of the vote, focusing on one particular proposal to create a Committee of Nomination to place MPs onto select committees. This raises questions regarding two competing academic approaches to explaining parliamentary reform, the ‘attitudinal’ approach and the ‘contextual’ approach, and concludes that, of the two, the ‘contextual’ approach is better placed to explain the failure to create a Committee of Nomination.     

The internet and the state: Instrument of social control or subversive tecnology?

Conclusion Technological progress always contains within it the ironic dialectic of liberation and domination. The computer-based information highway is no exception. As a consequence, our own view is that the computer revolution contains the potential for both over-control and subversion of control. Science and technology are not neutral. They are social constructs that exist only within a context of choices of development and application. Therefore, it is not the technology that constrains, or oppresses, or liberates. Rather, the emancipatory potential of this new technology lies in the degree to which those who use it can disseminate it and maintain it as a relatively low-cost communication tool. To date, many of those involved in expanding the Internet frontier have generally been suspicious of and resistant to government intrusion into the Net. While it is often easier to simply dismiss such suspicion as the ranting of conspiracy theorists, history has taught us that such a na?ve faith in the benevolence of the government is unwise. Our intention here has not been to provide a definitive conclusion about the past, present, or future state of technological progress; instead we hope that our discussion will spark further critical analysis of technology and related topics.     

mHealth and data protection – the letter and the spirit of consent legal requirements

In this article, the role of consent is discussed in the framework of fundamental rights and in the context of mobile health technologies (mHealth), such as smart phones, mobile phones or tablet/palm-held computing devices to provide healthcare. The authors surmise how, in practice, although there will be more emphasis on informed consent formally, there will be less space for genuine individual consent. This betrays a focus more on the letter of consent rules in data protection than their spirit. This risks reducing consent to a tick box operation in a manner analogous to consumer transactions, something manifestly unsuitable for consent, even if only in informational terms, during medical procedures.     

Picking up the pace – legal slowness and the authority of the judiciary in the acceleration society (a Dutch case study)

This paper inquires into the nature of the crisis haunting the judiciary in our contemporary society. Drawing upon the work of Hartmut Rosa, it is stated that our society is an acceleration society and that this puts the judiciary under great pressure. The resulting crisis is twofold since it is both of an organizational and fundamental nature. The focus of this paper is on the – in our view – underexposed latter crisis because of its effect on the very core of the judiciary, namely the legitimacy and authority. The judiciary is confronted with the demand to speed up, whereas the nature of the legal system seems to reject an accelerated tempo and even needs a certain degree of slowness to communicate its accuracy. It is not just the process of acceleration that erodes or at least changes the authority of the judiciary but it concerns a complex interplay of expectations induced by acceleration, both externally by justice seeking citizens and internally by the judiciary’s own management and politics, and how these expectations are met, or not. This is illustrated by a case study on the position of the Dutch judiciary, but holds true for other national and international adjudication as well.     

MPs and the Internet – An Empirically Based Typology

In recent years, both an increase in and a process of differentiation of ‘new’, digital media devices, including rising numbers of citizens turning to them, have stimulated recurring speculation about a readjustment of the communicative relationship between political representatives and the people. The debate about ‘electronic democracy’ has so far focused predominantly on technical potentials on the one hand and citizens' exposure to interactive political communication channels on the other. By contrast, the ‘supply side’, that is, the internet activities of political actors and especially their motives, has been investigated relatively rarely. Against this backdrop, two representative surveys were conducted among German and Austrian members of parliament that investigated their attitudes towards the internet. The results demonstrate similarities and differences in internet-related competences and assessments which are explained by micro- and meso-level factors. Foremost, an age-related ‘digital divide’ was found crossing the parliamentarian rows in both countries.     

Saviour-sibling and the psychological, ethical and judicial issues that it creates: should English and French legislators close the Pandora's Box?

Since the advent of test-tube babies, advances in the biomedical field have risen steadily. In parallel, the scientific body has never since ceased to debate the ethical issues that they arise. This is particularly the case regarding saviour-sibling. Saviour-sibling refers to a child who is conceived to cure an older brother or sister suffering from a serious family genetic disease. Therefore, it is meant to give birth to a child who will provide stem-cells taken from the umbilical cord or bone marrow afterwards, to treat an elder sick sibling. In England, this practice has been explicitly allowed by the new Human Fertilisation and Embryology Act 2008 under some strict conditions. In France, this practice, authorized by the Bioethics Law of August 2004 and confirmed by its decree of implementation published in the Official Journal on 23 December 2006, is also strictly regulated. This technique opens up new perspectives and enormous hope. Its legalisation is certainly justified by the suffering of the parents and to avoid that they travel to other States where it is permitted. However, it raises serious psychological ethical and judicial issues. Following an analysis of the English and French laws on saviour siblings, its controversial side will be highlighted, before concluding whether or not this new Pandora's box which is saviour-sibling, should be closed and other alternative methods encouraged.     

Mock terrorists decisions’ concerning use of the internet for target selection: a red-team approach

In this study we sought to identify which locations appear more, or less, attractive to a terrorist in planning an attack and to investigate what attributes of those locations influence preferences. A sample of undergraduate university students (N?=?147) were given the role of terrorists, and provided with five potential attack locations, including a pedestrian mall, a shopping center, a train station, a university and an airport. After using the Internet to learn about the target locations, participants placed the locations in rank-order from most to least preferred as targets and indicated why they had selected those targets. Results showed both a clear rank-order of target preferences: locations perceived as being more crowded were more preferred, while locations with a greater security presence were less preferred. Results also demonstrated a moderate positive correlation between the amount of online information viewed for a specific location and the preference for that location as a terrorist target, where participants who viewed more online content for a particular location were more likely to also prefer that location as a terrorist target. Findings from this study can potentially be used to reduce the likelihood of a terrorist attack occurring on specific locations, by altering the publicly available information on that location regarding the security and how crowded that location is.     

The prosecutor and human rights – from the general to the particular

It is not unusual that one or all parties commit a genuine mistake when making contracts. While there is the strict general duty under the law to respect agreements, there equally exists the duty for courts and tribunals to be fair and to render commercial justice in the factual matrix of cases before them. In national legal systems and transnational law regimes, rescission for mistake on economically efficient and just terms is embedded in contractual obligations. The Solle v Butcher (1950) doctrine, which represented the English law approach, was rejected in The Great Peace (2002). Potential conflicts and crises now exist in commercial relations and international dispute resolution when ‘English law’ is the applicable law. This extends to jurisdictions where English decisions are highly persuasive. This article examines the correctness and effect of The Great Peace decision on the doctrine of equitable rescission for genuine mistake as propounded in Solle v Butcher, and possible clarifications needed after the complications brought by The Great Peace. It analyses the conceptual importance of the remedy of equitable rescission for mistake in commercial transactions, and identifies serious substantive errors of law by The Great Peace court. Finally, it provides other effective, fair and efficient legal methods that remain available to avoid the weaknesses of the decisions.     

Scope of jurisdiction online and the importance of messaging – lessons from Australia and the EU

Where a court makes an order, for example, requiring an Internet platform to block or remove content, it has several options. The order can be limited to content displayed locally, it can apply to that content globally, or something in-between. This – the matter of ‘scope of jurisdiction’ – is gaining increasing attention and was the central issue in two recent decisions by the Court of Justice of the European Union (CJEU).In this article, I examine those two decisions. I then compare that to how Australian courts have dealt with scope of jurisdiction and I map out what we can learn from these cases. In doing so, I place emphasis on the importance of messaging and the need for judicial activism.     

Beyond the ‘Natasha’ story – a review and critique of current research on sex trafficking

A review of literature on sex trafficking since 2000 reveals that numerous articles have been published in scholarly journals but few are based on systematic primary data collection. Much of our current knowledge, including statistical estimates and characteristics of the trafficking business, derives from a handful reports issued by government and non-government agencies. With few empirical studies available, imagination seems to have filled the gaps of our knowledge. The problem was further complicated by a manifest (sometimes subtle) moral crusading agenda aimed at a deep-rooted and hotly debated social practice.

Also noticeable in the literature is an increasing number of authors who have begun to challenge the empirical premises claimed by these published reports. These sceptical authors find that many articles of questionable quality have been published in peer-reviewed journals, and claim that the current discourse on human trafficking is driven by mythology rather than empirical research.

Rather than dwelling on gaps in our knowledge or concerns over the moral overtone in academic research, this paper seeks to raise specific research questions and explore possible field strategies that can advance our knowledge on this topic. Regardless of one's moral compass, the future of research on sex trafficking cannot become credible without a solid empirical foundation.     

Between a rock and a hard place – An international law perspective of the difficult position of globally active Internet intermediaries

With its ability to create a global legal risk exposure, combined with contradicting rights and duties, and limited enforcement possibilities, the Internet has created a unique environment where persons and corporations legitimately can question whether they should comply with all the laws that apply to them. Focussing on the role of globally active Internet intermediaries, this article attempts to tackle this issue by discussing the potential for, and potential features of, an international law doctrine of selective legal compliance.     

Linkages between the Montreal and Kyoto Protocols – Enhancing Synergies between Protecting the Ozone Layer and the Global Climate

The international treaties for the protection of the ozone layer and the global climate are closely related. Not only has the Montreal Protocol for the protection of the ozone layer served as a useful example in developing the international climate regime, but policies pursued in both issue areas influence each other. This paper gives an overview of the many ways in which both treaty systems are linked functionally and politically. It investigates, in particular, the tension that has arisen with respect to the use of fluorinated greenhouse gases and the potential for drawing on the experience under the Montreal Protocol regarding data reporting and policy design on fluorinated greenhouse gases under the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The potentials for enhancing synergy in these areas are explored, and related options discussed. Some initiatives for exploiting these potentials are already underway, aiming in particular at enhancing learning and exchanging of information. However, political choices concerning some of the issues willeventually need to be made, if action at the international level is to contribute to their solution.