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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. 

intellectual property infringement.

The Google/Equustek case is not one of permissionless innovation, but is still an example of a large internet intermediary taking the position that it can do as it damned well pleases because, after all, it operates in multiple jurisdictions—in fact it operates in cyberspace, where, according to some, normal regulatory practices and laws shouldn’t apply or we will “stifle innovation”.

One innovation that Google has instituted is to tweak its geolocation system

The excuse of “it’s not my fault; blame the algorithm”, also won’t fly anymore. Google’s algorithms are the “secret sauce” that differentiates it from its competitors, and the dominance of Google is proof of the effectiveness of its search formulae.

But scooping up every bit of information and interpreting what people want (or what Google thinks they want) through an algorithm has its downsides. A German court has found that Google cannot hide behind its algorithms when it comes to producing perverse search results

AI is great, until it isn’t, and there is no doubt that regulators will start to look at legal issues surrounding AI.

Companies like Google and Facebook will not be able to duck their responsibility just because results that are potentially illegal are produced by algorithms or AI

One area where human judgement is very much involved is in the placing of ads, although Youtube and others are quick to blame automated programs when legitimate ads appear alongside questionable or illegal content. Platforms have no obligation to accept ads as long as they don’t engage in non-competitive trade practices

Google has already learned its lesson on pharmaceutical products the hard way, having been fined $500 million in 2011 for running ads on its Adwords service from unlicenced Canadian online pharmacies illegally (according to US law) selling prescriptions to US consumers.

Google is a deep-pocketed corporation but it seems to have got the message when it comes to pharmaceuticals. What galls me is that if Google can remove Adwords placements promoting illegal drug products, why, when I google “watch pirated movies”, do I get an Adwords listing on page 1 of search that says “Watch HD Free Full Movies Online”.

At the end of the day whether it is Google, Facebook, Amazon, or any other major internet intermediary, the old wheeze that respect for privacy, respect for copyright and just plain old respect for the law in general gets in the way of innovation is being increasingly shown to be a threadbare argument.

What is interesting is that many cyber-libertarians who oppose any attempt to impose copyright obligations and publishing liability on internet platforms are suddenly starting to get nervous about misuse of data by these same platforms when it comes to privacy.

This is a remarkable revelation for someone who has not only advocated that Canada adopt in NAFTA the overly-broad US safe harbour provisions found in the Communications Decency Act, a provision that has been widely abused in the US by internet intermediaries as a way of ducking any responsibility for the content they make available, but who has consistently crusaded against any strengthening of copyright laws that might impose greater obligations on internet platforms.

proponents of reasonable internet regulation

oogle’s video platform, YouTube, will make its content ID algorithm available to ALPA.

The algorithm is a tool for identifying and managing rights; ALPA will be able to apply the “block” and “follow” rules directly for any work placed on-line without the authorisation of the respective rights-holders. In this way it will be possible for rights-holders to add their works to the content ID filter and to ensure that their films and productions are not placed on YouTube without their consent. Google also undertakes to prevent its AdWords service from fraudulently buying key words for pirate streaming and downloading sites. It also undertakes to provide ALPA with financial support; the agreement is witness to its determination to contribute to the fight against piracy and to strengthen its policy of cooperation with originators and rights-holders.

The President of ALPA, Nicolas Seydoux, welcomed the agreement, which he said symbolised “the collapse of a wall of incomprehension” between Google and ALPA

The implications of cloud platforms such as Salesforce, Microsoft, Apple, Amazon and others differ again. A business built on a technology platform with a track record of well-developed data and model governance, audit capability, responsible product development practices and a culture and track record of transparency will likely reduce some risks related to biased data and model transparency, while encouraging (and even enforcing) adoption of those same practices and norms throughout its ecosystem.

policies that govern their internal practices for responsible technology development; guidance, tools and educational resources for their customers’ responsible use of their technologies; and policies (enforced in terms of service) that govern the acceptable use of not only their platforms but also specific technologies, such as face recognition or gait detection.

At the same time, overreliance on a small, well-funded, global group of technology vendors to set the agenda for responsible and ethical use of AI may create a novel set of risks.

Audit is another area that, while promising, is also fraught with potential conflict. Companies such as O’Neil Risk Consulting and Algorithmic Auditing, founded by the author of Weapons of Math Destruction, Cathy O’Neil, provide algorithmic audit and other services intended to help companies better understand and remediate data and model issues related to discriminatory outcomes. Unlike, for example, audits of financial statements, algorithmic audit services are as yet entirely voluntary, lack oversight by any type of governing board, and do not carry disclosure requirements or penalties. As a result, no matter how thorough the analysis or comprehensive the results, these types of services are vulnerable to manipulation or exploitation by their customers for “ethics-washing” purposes.

, we must broaden our understanding of platforms beyond social media sites to other types of business platforms, examine those risks in context, and approach governance in a way that accounts not only for the technologies themselves, but also for the disparate impacts among industries and business models.

This is a time-sensitive issue

arge technology companies — for a range of reasons — are trying to fill the policy void, creating the potential for a kind of demilitarized zone for AI, one in which neither established laws nor corporate policy hold sway.

ansparency would have its own radical effect inside the tech giants

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.