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However, the protection granted by the Directive is not absolute. Article 1(2)(b), bolstered by Recital 11, concedes that secrecy will take a back seat if the ‘Union or national rules require trade secret holders to disclose, for reasons of public interest, information, including trade secrets, to the public or to administrative or judicial authorities for the performance of the duties of those authorities’. 

With regard to trade secrets in general, in the Microsoft case, the CJEU held that a refusal by Microsoft to share interoperability information with a competitor constituted a breach of Article 102 TFEU.

Although trade secrets remained protected from the public and competitors, Google had to disclose Page Rank parameters to the Commission as the administrative authority for the performance of its investigative duties. It is possible that a similar examination will take place in the recently launched probe in Amazon’s treatment of third-party sellers. 

For instance, in February 2020, the District Court of the Hague held that the System Risk Indication algorithm that the Dutch government used to detect fraud in areas such as benefits, allowances, and taxes, violated the right to privacy (Article 8 ECHR), inter alia, because it was not transparent enough, i.e. the government has neither publicized the risk model and indicators that make up the risk model, nor submitted them to the Court (para 6 (49)).

Article 22 still remains one of the most unenforceable provisions of the GDPR. Some scholars (see, e.g. Wachter) question the existence of such a right to explanation altogether claiming that if the right does not withstand the balancing against trade secrets, it is of little value.

In 2019, to ensure competition in the platform economy, the European Parliament and the Council adopted Platform-to-Business (P2B) Regulation. To create a level playing field between businesses, the Regulation for the first time mandates the platforms to disclose to the businesses the main parameters of the ranking systems they employ, i.e. ‘algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools’ while recognising the protection of algorithms by the Trade Secrets Directive (Article 1(5)).

The recent Guidelines on ranking transparency by the European Commission interpret the ‘main parameters’ to mean ‘what drove the design of the algorithm in the first place’ (para 41).

The German Interstate Media Law that entered into force in October 2020, transposes the revised Audio-Visual Services Directive, but also goes well beyond the Directive in tackling automated decision-making that leads to prioritization and recommendation of content.

This obligation to ‘explain the algorithm’ makes it the first national law that, in ensuring fairness for all journalistic and editorial offers, also aims more generally at diversity of opinion and information in the digital space – a distinct human rights dimension. If the provision proves enforceable, it might serve as an example for other Member States to emulate. 

Lastly, the draft DSA grants the newly introduced Digital Service Coordinators, the Commission, as well as vetted researchers (under conditions to be specified) the powers of data access to ensure compliance with the DSA. The core of this right, however, is undermined in Article 31(6), which effectively allows the platforms to refuse such access based on trade secrecy concerns. 

This shows that although addressing algorithms in a horizontal instrument is a move in the right direction, to make it enforceable, the final DSA, as well as any ensuing guidelines, should differentiate between three tiers of disclosure: 1) full disclosure – granting supervisory bodies the right of access, which may not be refused by the IP owners, to all confidential information; 2) limited disclosure – granting vetted researchers the right of access limited in time and scope, with legal guarantees for protection of trade secrecy; and 3) explanation of main parameters – granting individuals information in accessible language without prejudice to trade secrets. 

ansparency would have its own radical effect inside the tech giants

Social network providers, meanwhile, are subject to proactive reporting obligations

The provider must check whether this is the case and report the content immediately, as well as provide the IP address and port number of the person responsible. The user “on whose behalf the content was stored” should be informed that the information has been passed on to the BKA, unless the BKA orders otherwise.

right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy;

United Nations, the OECD

European Union and the G8

establish as criminal offences under its domestic law,

producing child pornography

  offering or making available child pornography

distributing or transmitting

procuring

possessing

expeditious preservation of traffic data is available

expeditious disclosure to the Party’s competent authority,

In other cases, human moderators have had their decisions overturned. The Oversight Board also upheld Facebook’s decision to remove a dehumanizing ethnic slur against Azerbaijanis in the context of an active conflict over the Nagorno-Karabakh disputed region.

But Facebook and other social media companies do not have to engage in a transparent, publicly accountable process to make their decisions. However, Facebook claims that in its decision-making, it upholds the human right of freedom of expression. However, freedom of expression does not mean the same thing to everyone

rivate organizations are currently the only consistent governors of data and social media.

However, the Oversight Board deals with only a small fraction of possible cases.

Facebook’s dominance in social media, however, is notable not because it’s a private company. Mass communication has been privatized, at least in the U.S., for a long time. Rather, Facebook’s insertion into the regulation of freedom of expression and its claim to support human rights is notable because these have traditionally been the territory of governments. While far from perfect, democracies provide citizens and other groups influence over the enforcement of human rights.

Facebook and other social media companies, however, have no such accountability to the public. Ensuring human rights needs to go beyond volunteerism by private companies. Perhaps with the Australia versus Facebook showdown, governments finally have an impetus to pay attention to the effects of technology companies on fundamental human rights.

he democratic right for non-Americans to determine the rules under which we should live is not even considered. Instead, attempts by democratic governments to impose legitimate democratic regulation on these companies, many of which have assumed the status of essential infrastructure, is derided as creeping authoritarianism or as a threat to the free and open internet.

At the very least, thinking of internet governance in these terms should make us more sympathetic to attempts by the Australian, Canadian, German and United Kingdom governments to legislate in this area, rather than be dismissive of the legitimacy of (democratic) governance on its face. If we value democratic oversight, state regulation is almost the only game in town, an approach that can be complemented with international treaty-making among democratic states so as to create agreed-upon minimum standards for regulating cross-border platform activities.

o address the first question, in a sense, the global American platforms are free riders on the notion that the internet as a network should be global in reach. Here, a useful analogy is the global financial system. Although we have a global financial system, it is characterized by domestic regulation and, in many countries

many of the social harms perpetuated by platforms are the likely result of their business models, which incentivize extremist speech and pervasive surveillance

Speech regulation without addressing these root causes is unlikely to be successful. If tools such as internet search functions truly have become essential to knowledge discovery and exhibit natural monopoly characteristics, countries should have the ability to determine for themselves what form they should take. To be blunt, public ownership should be on the table, even if it isn’t, currently, in the United States.

Google’s threat (which mirrored Facebook’s) to cut off its search service to Australia was likely due as much, if not more, to Australia’s plan to exercise oversight over its proprietary algorithm than it was about Australia’s plan to force Google to give a cut of its revenues to various Australian media outlets. The harshness of this threat highlights exactly how hard it will be for non-US countries to exert any meaningful control over the services currently monopolized by these US companies.

Already, the United States, as the home of these companies, is working to solidify the market and social dominance of its platforms.

As already mentioned, the CUSMA contains provisions protecting free cross-border data flows that, while justified in terms of encouraging trade, serve to preserve the dominance of the US platforms in Canada and Mexico. To this, we can add its successful inclusion of CDA Section 230 language in the agreement, effectively pre-empting Canadian and Mexican debates over what values we wish to apply to platform governance.

he first step to coming up with a sound policy involves understanding the policy terrain. In internet governance, and particularly in platform governance, this involves understanding the extent to which the dominant debates and landscape reflect particular US interests and values

hese interests and values do not necessarily reflect those of people living in other countries. Both Canadians and Americans believe in free speech and market competition. However, our interpretations of the limits of each differ. This reality — the acknowledgement of legitimate differences and the necessity of democratic accountability — should be our starting point in discussions of internet governance, not the desire to preserve a global internet and platform ecosystem that is much less global, and much more American, than it appears.