Mandating interoperability of interpersonal communications services in an ecosystems competition context

With the adoption of Article 7 of the Digital Markets Act, the EU has taken a progressive approach to mandating horizontal interoperability of number-independent interpersonal communications services. This legislative measure addresses the structural competition challenge posed by direct network effects, which tend to lock users into established messaging platforms. However, it is not entirely clear how, if at all, the Commission should implement this interoperability mandate. To shed light on this matter, we present an ecosystems competition context where these messaging services transition into digital ecosystems to create value from user-generated data and attention. Within this context, we find interoperability mandates like Article 7 a plausible solution to the structural competition problem, although much is yet to be done to sharpen these mandates against the intricate inter-ecosystem dynamics and to empower multi-homing users in a post-interoperability world. Achieving this goal requires collaborative efforts not only from sector regulators responsible for overseeing these mandates but also from antitrust and data protection authorities.     

Taming the few: Platform regulation,independent audits,and the risks of capture created by the DMA and DSA

In its attempt to better regulate the platform economy, the European Commission recently proposed a Digital Markets Act (DMA) and a Digital Services Act (DSA). While the DMA addresses worries about digital markets not functioning properly, the DSA is concerned with societal harms stemming from the dissemination of (illegal) content on platforms. Both proposals focus on the relative size of platforms. The DMA applies to ‘gatekeeper’ platforms and the DSA has a special regime of scrutiny for ‘very large online platforms’ (VLOPs). Focusing on size, however, can have negative consequences for the enforcement of the DSA: First, risks disseminated by platforms below the VLOP-threshold reside in a regulatory blind spot. Second, VLOPs may leverage their market power against their new mandatory auditors and risk assessors, a threat theorised as ‘audit capture’ in this article. As a result, societal risks may remain undiscovered or downplayed and consumers and citizens may be harmed. This article traces the origin of the size criteria in the legislative history of the DMA and DSA proposals. It argues for safeguards against audit capture and adverse incentive structures in the DSA. The article draws on the debate on audit reform in the aftermath of the global financial crisis of 2007–2008 to provide blueprints for fixing the regulatory gap.     

Taming digital gatekeepers: the ‘more regulatory approach’ to antitrust law

Antitrust enforcement and competition policy in the digital economy is high on the agenda of authorities and policymakers. The distinctive features of digital markets and the strategic role played by large platforms apparently require a rethinking of the antitrust regime. Several reform proposals point to the need to integrate the antitrust toolkit with ex ante measures since there is a risk that ex post enforcement would be too slow to successfully keep markets competitive and contestable. The aim of this paper is to investigate whether the invoked regulatory approach reflects the distinctive structural features of digital markets or whether it is just an enforcement short-cut.     

论互联网平台反垄断的宏观定位——基于政治、政策和法律的分析

反垄断法的定位取决于其独特的价值、目标和功能。反垄断法自始即具有重大的政治经济使命,可以成为有着宏大价值目标和强大经济调整功能的"超级法"。互联网产业在资本、技术和商业模式上的独特性,使平台易于触角广泛和无序扩张,具有反垄断的高关联度。互联网平台反垄断首先要在宏观价值上拓展思路和提高站位,又要积极寻求恰当的法律和经济的技术性路径。我国互联网平台反垄断不能轻言和盲从当今美欧的表面趋势,不汲汲于引领潮流和贡献经验,趋势之下可能掩盖着不同的利益诉求,而要一切服从和服务于我国数字经济的实质性发展利益,既要及时、积极和到位,又要适时、适度和谦抑,并始终以促进我国互联网产业创新发展和提升国际竞争力为目标。互联网平台反垄断应当坚持法治进路,构建相应的规则体系,并确保客观、中立和理性,防止非理性和情绪化。     

A forensic examination of four popular cross‐platform file‐sharing apps with Wi‐Fi P2P

File‐sharing apps with Wi‐Fi hotspot or Wi‐Fi Direct functions become more popular. They can work on multiple platforms and allow users to transfer files in a concealed manner. However, when criminals use these apps in illegal activities, it becomes an important issue for investigators to find digital evidence on multiple platforms. At present, there are few studies on this topic, and most of them are limited to the single platform problem. In this paper, we propose a forensic examination method for four popular cross‐platform file‐sharing apps with Wi‐Fi hotspot and Wi‐Fi Direct functions: Zapya, SHAREit, Xender, and Feem. We use 22 static and live forensic tools for 11 platforms to acquire, analyze, and classify the forensic artifacts. In our experiments, we find many useful forensic artifacts and classify them into six categories. The experimental results can support law enforcement investigations of digital evidence and provide information for future studies on other cross‐platform file‐sharing apps.     

论国际法规范的位阶

条约法公约首次在国际法上规定了强行法概念。国际法学者以强行法、对一切义务、国际罪行等的出现为根据,提出了位阶理论,主张国际法规范已经产生类似于国内法的"规范等级"。在实践中,位阶理论在确定国际法等级以及效力层次上的作用也极为有限。国际法院的判决在某种程度上仅仅是指明某些义务具有基础性,而并不能证明强行法规范具有高于一般规范的效力。尽管如此,位阶理论的提出仍使特定国际法规范的效力在某种程度上超出"同意",也在某种程度上解决了条约义务与国际社会根本义务相冲突的情形。     

Crossing the Rubicon? The implications of RCEP on anti‐monopoly enforcement on dominant E‐commerce platforms in China

The rapid development of e-commerce has markedly influenced the daily lives of the Chinese people over the last two decades. The rise of dominant e-commerce platforms and accompanying alleged abusive practices may impair competition and cause harm to online consumers. Although China's Anti-Monopoly Law and E-commerce Law provide a legal basis to deal with these practices, Chinese competition regulators rarely undertake investigations into these platforms. The inability of the law to keep pace with digital advancements is compounded by outdated rationales and traditional practices. China's problems relate to e-commerce competition and its regulation, such as the old-fashioned anti-monopoly rationale and some abusive practices conducted by dominant platforms. The Regional Comprehensive Economic Partnership (RCEP), concluded in late 2020, provides specific provisions regarding e-commerce and competition, requiring its 15-member states to promote a competitive and integrated e-commerce market in the region. This article critically examines the potential implications the RCEP may have on China's anti-monopoly enforcement of dominant e-commerce platforms and argues that, despite China's recent efforts to regulate e-commerce competition, these developments are still insufficient to fulfil the requirements of the RCEP.     

Tying and bundling by online platforms – Distinguishing between lawful expansion strategies and anti-competitive practices

The assessment of tying and bundling practices under Art. 102 TFEU in the case of online platforms will require adjusting current practice to correspond to their technical complexity and multi sided nature. Although the current framework may appear suitable to deal with this kind of abuses, The recent cases against Google show that there is still much uncertainty in practice. Therefore this article seeks to address the matter of tying and bundling by online platforms and provide guidance with regard to the application of the current legal framework to such complex cases in order to prevent false finding in ongoing and future cases.This article shows that finding an abuse of dominance in platform related cases requires great diligence as the joint provision of products or services and market power leveraging by platforms is an inherent part of their commercial evolvement. In this regard the article offers insight on how to distinguish between anticompetitive tying and bundling practices and legitimate expansion strategies. In order to do so, the article discusses how such practices can manifest and how they should be addressed under the framework of EU competition law in light of the similar competitive concerns they share with non-platform cases.     

香港特别行政区ADR发展的新动向——商事争议强制性调解机制的兴起

香港特别行政区(以下简称香港)长期以来坚持自愿调解机制,其近年来的司法实践和立法均有了一些新的发展。香港的民事司法改革极大地促进了调解机制的发展,改革后的香港正式立法虽然仍没有采纳强制性调解机制,但是通过处罚诉讼费用这种变通的方式同样达到了强制性调解的效果。建筑业是调解在香港运用得最为充分的领域。强制性调解,尤其是建筑业中强制性调解的兴起和发展,不仅为香港商事争议的解决起了引领作用,也进一步加速了香港ADR机制发展的进程。     

New right,new left,new challenges: understanding and responding to neoconservatism in contemporary criminology

This essay examines the rise of neoconservative thought within criminological discourse from the enlightenment ‘quarrel’ with ancient philosophy and church supported scholasticism in the 1700s to the present day. From the perspective of criminology, it is argued that there is little new about the ‘new right’ with the exception that it has managed to galvanize itself as a popular retributionist alternative among the working class in the United States, Canada, and England. The current organization of social institutions in a modern ‘risk society’ facilitates the easy re-definition of the crises of late-modern capitalism into issues of social control. It is not surprising we find the right reinvigorated and prominent under these conditions. New left realism and crime control through social development are offered as competitive platforms from which to advance critique of barbaric right-wing crime-control policies. Despite all my rage, I am still just a rat in cage (Smashing Pumpkins 1996)     

法医学鉴定强制性标准的现状、问题和对策——以《强制性国家标准管理办法》为视角

法医学鉴定意见是重要的诉讼证据,鉴定标准尤其是强制性标准直接影响鉴定意见的科学性、公正性和权威性。当前我国法医学鉴定的强制性国家标准仅有3项,推荐性国家标准及行业标准489项。法医学标准数量有限,尤其强制性标准奇缺,已经影响到我国法医学鉴定实践和学科发展。《强制性国家标准管理办法》旨在加强和推进我国强制性国家标准的管理和发展。笔者建议,以该办法的实施为契机,相关行政管理部门应当发挥更多作用,采取有力措施推进法医学鉴定强制性国家标准的制定,进一步补充、修改、完善法医学鉴定行业标准,强化法医学鉴定强制性国家标准的执行。     

Privacy law as price control

The median Internet user is concerned about digital advertisers collecting personal information. To address these fears, the European Union passed the Privacy Directive to regulate the common business practice of information collection. This paper investigates the potential effects of this regulation, finding that the law is likely to generate several unintended consequences. Economists and legal scholars acknowledge that personal data serves as the “price” for accessing many digital platforms. I extend this logic to argue that if a regulation enables consumers to stop supplying this information, while continuing to consume the site’s content, it is equivalent to a price control. Next, I discuss unintended consequences that this price control may generate: tie-in sales, investment flight, and altered exchange characteristics. Lastly, I conclude that, just as with traditional price controls, the privacy price control may be a way for government officials to enhance their popularity with the citizenry. In short, my analysis suggests that one of the most well-researched policy interests of economics—the theory of price controls—can shed light on one of economists’ newest interests: digital privacy.     

The Supremacy of Techno-Governance: Privatization of Digital Content and Consumer Protection in the Globalized Information Society

The article aims to describe the role of technology and contractin regulating access to digital content deregulating intellectualproperty law monopoly. In particular it argues that the anti-circumventionprovisions for technological protection measures and digitalrights management systems enacted in the United States and inEurope compromise the consumer’s capacity to exerciselegitimate rights, such as the private use exemption, by givingcontent owners extralegal protection for their works. It alsoanalyses how these acts have caused an inappropriate delegationof governmental decision making to a non-governmental entitywith a consequent privatization of the government’s rolein protecting intellectual property and in setting technicalstandards for digital infrastructure and interoperability.     

Sanctions on digital platforms: Balancing proportionality in a modern public square

This paper asks which legal tools digital operators could use to manage colliding rights on their platforms in a digitalised and transnational space such as the Internet. This space can be understood as a “modern public square”, bringing together actions in the digitalised world and their interactions with actual events in the physical world. It is then useful to provide this space with a discursive framework allowing for discussing and contesting actions happening on it. In particular, this paper suggests that two well-known legal concepts, proportionality and sanctions, can be helpfully articulated within that discursive framework. In a first step, proportionality, a justificatory tool, is often used to suggest a way for managing colliding rights. This paper argues that for proportionality to be useful in managing colliding rights on digital platforms, its role, scope and limits need to be better framed and supplemented by an overall digital environment which can feed into the proportionality test in an appropriate way. This can be provided, thanks to a second step, namely labelling in law the actions digital operators take as sanctions. Sanctions are the reactions organised by digital operators to bring back social order on the platforms. The labelling of these reactions under the legal category of “sanctions” offers a meaningful tool for thinking about what digital operators do when they manage colliding rights by blocking or withdrawing contents and/or accounts. As different types of sanctions can be distinguished, differentiated legal consequences, especially in relation to managing colliding rights, can be identified. Here the role played by the proportionality test can be distinguished depending on the type of sanctions. In any case, for sanctions and proportionality to help address colliding rights on the modern public square, a discursive framework needs to be developed, which depends on the existence of relevant meaningful communities engaging in reflecting on the use of sanctions and proportionality.     

The New City Regulators: Platform and Public Values in Smart and Sharing Cities

Cities are increasingly influenced by novel and cosmopolitan values advanced by transnational technology providers and digital platforms. These values which are often visible in the advancement of the sharing economy and smart cities, may differ from the traditional public values protected by national and local laws and policies. This article contrasts the public values created by digital platforms in cities with the democratic and social national values that the platform society is leaving behind. It innovates by showing how co-regulation can balance public values with platform values. In this article, we argue that despite the value-creation benefits produced by the digital platforms under analysis, public authorities should be aware of the risks of technocratic discourses and potential conflicts between platform and local values. In this context, we suggest a normative framework which enhances the need for a new kind of knowledge-service creation in the form of local public-interest technology. Moreover, our framework proposes a negotiated contractual system that seeks to balance platform values with public values in an attempt to address the digital enforcement problem driven by the functional sovereignty role of platforms.     

海事强制令的限制适用条件

海事强制令有利于快速、有效解决某些海事纠纷 ,但同时也容易给被请求人带来不公。本文从海事强制令的性质入手 ,结合英国相关法律制度 ,对海事法院签发海事强制令时所应考虑的合理因素作了初步讨论。     

Smartphone platforms as privacy regulators

A series of recent developments highlight the increasingly important role of online platforms in impacting data privacy in today's digital economy. Revelations and parliamentary hearings about privacy violations in Facebook's app and service partner ecosystem, EU Court of Justice judgments on joint responsibility of platforms and platform users, and the rise of smartphone app ecosystems where app behaviour is governed by app distribution platforms and operating systems, all show that platform policies can make or break the enjoyment of privacy by users. In this article, we examine these developments and explore the question of what can and should be the role of platforms in protecting data privacy of their users.The article first distinguishes the different roles that platforms can have in ensuring respect for data privacy in relevant ecosystems. These roles include governing access to data, design of relevant interfaces and privacy mechanisms, setting of legal and technical standards, policing behaviour of the platform's (business) users, coordinating responsibility for privacy issues between platform users and the platform, and direct and indirect enforcement of a platform's data privacy standards on relevant players. At a higher level, platforms can also perform a role by translating different international regulatory requirements into platform policies, thereby facilitating compliance of apps in different regulatory environments. And in all of this, platforms are striking a balance between ensuring the respect for data privacy in data-driven environments on the one hand and optimization of the value and business opportunities connected to the platform and underlying data for users of the platform on the other hand.After this analysis of platforms’ roles in protecting privacy, the article turns to the question of what should this role be and how to better integrate platforms in the current legal frameworks for data privacy in Europe and the US. The article will argue for a compromise between direct regulation of platforms and mere self-regulation, in arguing that platforms should be required to make official disclosures about their privacy-related policies and practices for their respective ecosystems. These disclosures should include statements about relevant conditions for access to data and the platform, the platform's standards with respect to privacy and the way in which these standards ensure or facilitate compliance with existing legal frameworks by platform users, and statements with respect to the risks of abuse of different data sources and platform tools and actions taken to prevent or police such abuses. We argue that such integration of platforms in current regulatory frameworks is both feasible and desirable. It would make the role that platforms already have in practice more explicit. This would help to highlight best practices, create more accountability and could save significant regulatory and compliance resources in bringing relevant information together in one place. In addition, it could provide clarity for business users of platforms, who are now sometimes confronted with restrictive decisions by platforms in ways that lack transparency and oversight.     

The right to data portability in the GDPR: Towards user-centric interoperability of digital services

The right to data portability is one of the most important novelties within the EU General Data Protection Regulation, both in terms of warranting control rights to data subjects and in terms of being found at the intersection between data protection and other fields of law (competition law, intellectual property, consumer protection, etc.). It constitutes, thus, a valuable case of development and diffusion of effective user-centric privacy enhancing technologies and a first tool to allow individuals to enjoy the immaterial wealth of their personal data in the data economy. Indeed, a free portability of personal data from one controller to another can be a strong tool for data subjects in order to foster competition of digital services and interoperability of platforms and in order to enhance controllership of individuals on their own data. However, the adopted formulation of the right to data portability in the GDPR could benefit from further clarification: several interpretations are possible, particularly with regard to the object of the right and its interrelation with other rights, potentially leading to additional challenges within its technical implementation. The aim of this article is to propose a first systematic interpretation of this new right, by suggesting a pragmatic and extensive approach, particularly taking advantage as much as possible of the interrelationship that this new legal provision can have with regard to the Digital Single Market and the fundamental rights of digital users. In sum, the right to data portability can be approximated under two different perspectives: the minimalist approach (the adieu scenario) and the empowering approach (the fusing scenario), which the authors consider highly preferable.     

The Forces of Conviction: The Power and Practice of Mandatory Prosecution upon Misdemeanor Domestic Battery Suspects

This article provides an ethnographic account of the power and practice of mandatory prosecution upon misdemeanor domestic battery suspects. Integrating law and society studies, domestic violence research, and poststructuralist theories of power, it finds that mandatory prosecution engages suspected batterers in multiple power operations that shape their agency in different ways. While many of these operations are familiar from past law and society research, mandatory prosecution alters their practice. In general, the different tactics that legal authorities deploy in their interactions with domestic battery suspects coalesce in an effort to have them plead guilty. The impact of these tactics on batterers, however, is far from clear. Mandatory prosecution increases the number of persons convicted of domestic violence. But abusers' violence is repeatedly redefined and displaced, as they are processed through the court setting, thus casting doubt on the criminal court's power to affect their accountability. By detailing the court's various points of encounter with domestic battery suspects, this study offers a much-needed empirical framework for future evaluations of court interventions against domestic batterers.     

The role of standardization and interoperability in copyright protection of computer software

Copyright protection for computer software often presents a contradiction between law and the desired public policy that is the law's inspiration. The law provides incentives to individuals to create intellectual property by protecting authors through monopolistic controls on copying and distributing the authors' work. Conferring too much protection, however, may reduce incentives to create competitive products in the same market, defeating the law's constitutional purpose of encouraging the “Progress of Science and the useful Arts.” Two characteristics of computer software, technical standards and interoperability, compound this contradiction. Using economic literature on standards and the recent line of Lotus v. Borland cases, this article examines the role of standardization and interoperability in copyright protection of computer software, and suggests a part for the fair‐use defense in such cases.