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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. 

with regard to copyright protection, the Court stressed that a complete cessation of infringements might not be possible or achievable in practice

this does not pose a problem, given that, as previously emphasised in the Court’s case law, there is nothing whatsoever in Article 17(2) of the Charter to suggest that intellectual property is inviolable and must be absolutely protected

According to the Court, internet access providers must make sure that both right-holders and users are kept happy, with no real guidance as to what measures might achieve that effect.

“figuring out what content is legal against what content is infringing is too hard for us poor lawyers and judges!”

the two SABAM cases, which found filtering incompatible with fundamental rights, by confirming that specific (in the sense of “targeted at a clearly indicated website”) blocking injunctions are permissible, as long as they do not unreasonably infringe users’ rights.

act explicitly redirects the balancing exercise to a private enterprise and defers the assessment of its outcome to a later procedure.

SP has no real way of knowing what is and what is not “reasonable” in the eyes of the law.

. It’ll be reasonable, the Court seems to say, as long as it’s not entirely ineffective, or at least tries to not be entirely ineffective, or at least suggests that users shouldn’t do this

. Indeed, in a recent Dutch case, the court of appeal of The Hague overturned an injunction ordering access providers ZIGGO and XS4ALL to block the well-known torrenting site The Pirate Bay, after studies confirmed no effect at all on the number of downloads from illegal sources.

nsisting that a symbolic “do something” gesture must be made to establish that the intermediary is opposed to piracy, even if it cannot achieve real results.

UK’s Justice Arnold in EMI Records v British Sky Broadcasting

guidelines assessing the proportionality of blocking measures be laid down by the CJEU – that would have been welcome indeed!

The Appeal Court based its decision on the fact that right holders' unions and societies were financially unable to cover the costs of injunctions, whilst ISP/IBPs were.

he appeal decision went further by stressing that their order was also justified by fact that the defendants generated profits from internet users accessing the infringing websites. As a result, the Court breached ISP/IBPs' freedom to conduct business (as protected by Articles 16 and 52(2) of the Charter of Fundamental Rights of the European Union).

. First, it confirmed that neither ISPs nor IBPs were liable for secondary infringement so long as they had no knowledge of the infringing activities or that they acted sufficiently promptly to put an end to the known illegal acts upon notification by right holders. Second, the Supreme Court reasserted that ISP/IBPs were under no statutory obligation to undertake surveillance work of internet users.

Nevertheless, the Supreme Court insisted that the judiciary had jurisdiction to require of ISP/IBPs to perform any necessary measures against copyright infringement on the internet, thanks to the 2000 Directive on electronic commerce and the 2001 InfoSoc Directive (tranposed into national law under Article 6-1-8 of the 2004 'LCEN' Act). The Court held that the dispositions provided a lawful basis to have the costs of injunctions charged against ISP/IBPs. This is because as "technical intermediaries" ISP/IBPs are  "best placed to bring such infringing activities to an end", the Court say, quoting the words of the InfoSoc Directive (Recital 59) directly. 

The Supreme Court judges see nothing under EU law that would prevent national courts from attributing all costs to intermediaries.

"despite their non-liability, access and hosting providers are legally bound to contribute to the fight against illicit material and, more specifically, against the infringement of authors' and neighboring rights" ; "...[O]n the basis of the pure point of law, the decision of the Court of Appeal was legally justified". 

on the other hand, that neither ISPs nor IBPs demonstrated that the performance of the measures would represent an unbearable sacrifice, or that their costs would endanger their economic viability

It is very interesting to see French Courts give so much weight to the financial situation of the parties and the (alleged or potential) revenues generated by ISP/IBPs from infringing websites, in their application of liability rules. Indeed, the latter are usually framed as pure questions of law, disconnected from economic realities.

We will have to wait to see whether the position of the French court catches on in other jurisdictions, or not.

While well-intended, EU policymakers should find the appropriate equilibrium between transparency, the protection against rogue players’ attempts to game the system, and the protection of operators’ trade secrets. Any new requirement must be achievable, proportionate to known risks and provide real added value.

Undermining the ‘country of origin’ principle would fragment the EU Single Market and create more red tape for national businesses trying to become European businesses.

To prevent legal uncertainty, the DSA should have a clear scope focusing on illegal content, products and services. The rules should be horizontal and principle-based, and could in a second phase be complemented with more targeted measures (legislative and non-legislative) to tackle specific concerns. 

ansparency would have its own radical effect inside the tech giants

he regulator, on the other hand, has a more detached role, when compared to older types of media regulation, in which they mainly assess whether mechanisms established by the provider comply with the law

This approach gives rise to concerns that we are just outsourcing regulation to private companies.

Indeed, the delegation of the exercise of regulatory powers to a private entity could be very damaging to freedom of speech and media.

So, I think the legal groundwork for protection but also the fair treatment of users is in the directive. Now it depends on the member states to implement it in such a way that this potential will be fulfilled (and the European Commission has a big role in this process).

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.

did not set a clear indication on deciding how many times of views or downloads are enough to trigger the examining duty, which puts hosting providers' liability in uncertainty.

Beijing High Court, Go East Entertainment Co. Ltd. (H.K.) v. Beijing Alibaba Technology Co., Ltd., (2007) Er Zhong Min Chu Zi No. 02627, December 20, 2007

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,

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