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While AI tools still exist in a relative legal vacuum, this blog post explores: 1) the extent of protection granted to algorithms as trade secrets with exceptions of overriding public interest; 2) how the new generation of regulations on the EU and national levels attempt to provide algorithm transparency while preserving trade secrecy; and 3) why the latter development is not a futile endeavour. 

most complex algorithms dominating our lives (including those developed by Google and Facebook), are proprietary, i.e. shielded as trade secrets, while only a negligible minority of algorithms are open source. 

Article 2 of the EU Trade Secrets Directive

The explicit reference to human rights in its charter acknowledges that companies have a role in protecting and enforcing human rights.

This is consistent with efforts by the United Nations and other advocacy efforts to create standards on how businesses should be held accountable for human rights abuses. In light of Facebook’s entanglement in misinformation, scandals and election falsehoods, as well as genocide and incitement of violence, it seems particularly pertinent for the company.

To date, we have assigned such decision-making powers to states, many of which are accountable to their citizens. Facebook, on the other hand, is unaccountable to citizens in nations around the world, and a single individual (Mark Zuckerberg) holds majority decision-making power at the company.

his set of rules creates a novel regulatory model

Again, leaving regulatory powers to a private entity without any public oversight is clearly not the right solution. But this is also not what, in my opinion, the new AVMSD does

But without transparency and information about individual cases, you surely can’t say whether the takedowns are really improving the media environment, or the providers are just trying to get rid of any controversial content – or, indeed, the content somebody just happens to be complaining about.

[19] The Order of the Court will incorporate provision for liberty to apply. By this mechanism the Plaintiff, if necessary and if so advised, will be able to seek further relief from the Court if there is any recurrence of the offending publication. Of course, in such eventuality, it will be open to Facebook, acting responsibly and in accordance with the principles and themes clearly expressed in this judgment, to proactively take the necessary removal and closure steps.

[20] I refuse the Plaintiff's application for the wider form of interim injunction sought by him. This was to the effect that Facebook be required to monitor the offending webpage in order to prevent republication of the offensive material. In this respect, I prefer the argument of Mr Hopkins that such an order would lack the requisite precision, could impose a disproportionate burden and, further, would potentially require excessive supervision by the Court. See Cooperative Insurance v Argyll [1997] 3AL ER 297, pages 303 – 304, per Lord Hoffman. See also Halsbury's Laws of England, Volume 24 (Fourth Edition Reissue), paragraph 849. The propriety of granting this discrete remedy will, of course, be revisited at the substantive trial, against the backcloth of a fuller evidential matrix, which should include details of how this social networking site actually operates from day to day.

The commercial importance of ISS providers is recognised in Recital 2 of the Directive which notes the significant employment opportunities and stimulation of economic growth and investment in innovation from the development of electronic commerce. The purpose of the exemption from monitoring is to make the provision of the service practicable and to facilitate the opportunities for commercial activity. The quantities of information described by the learned trial judge at paragraph [19] of his judgment explain why such a provision is considered necessary. Although the 2002 Regulations do not contain a corresponding provision they need to be interpreted with the monitoring provision in mind.

Given the quantities of information generated the legislative steer is that monitoring is not an option

he judge concluded that the existence of the XY litigation was itself sufficient to fix Facebook with actual knowledge of unlawful disclosure of information on Predators 2 or awareness of facts and circumstances from which it would have been apparent that the publication of the information constituted misuse of private information. In our view such a liability could only arise if Facebook was subject to a monitoring obligation

How did we let this happen? Why do we appear so weak?

For years Brussels has been the champion of self-regulation. The dogma is – at least publicly – based on the assumption that companies know best how to tackle some of the challenges.

Our failure to understand the underlying challenges and a failure of regulation.

In a six-month period from October 2017 to March 20178, 21m sexually explicit pictures, 3.5m graphically violent posts and 2.5m forms of hate speech were removed from its site. These figures help reveal some striking points.

As expected, the data indicates that the problem is getting worse.

For instance, between January and March it was estimated that for every 10,000 messages online, between 22 and 27 contained graphic violence, up from 16 to 19 in the previous three months.

“Institutional standards should not contain elements pushed in by lobbies, since they are detrimental to public interests. Of course lobbies have financial and political means to ignore or distort standards in their products, but they want more. T

Accordingly, UPC was instructed to do everything that could possibly and reasonably be expected of it to block kino.to. Whether all reasonable measures were taken was to be reviewed only in a subsequent “enforcement process”

he Court identified a three-way conflict between:  a) copyright and related rights; b) the intermediary’s right to conduct a business; and c) the freedom of information of internet users. It repeated its Promusicae conclusion that where several fundamental rights are at stake, a fair balance must be struck between the requirements of all. The Court found that the injunctive order under consideration struck the right balance.

intermediaries must be careful not to infringe users’ freedom of information

Article 15 prevents Member States from imposing on internet intermediaries, with respect to activities covered by Articles 12-14, a general obligation to monitor the information which they transmit or store or a general obligation to actively seek out facts or circumstances indicating illegal activities. This is important, as general monitoring of millions of sites and web pages would, in practical terms, be impossible and would result in disproportionate burdens on intermediaries and higher costs of access to basic services for users. [73] However, Article 15 does not prevent public authorities in the Member States from imposing a monitoring obliga tion in a specific, clearly defined individual case.[73] In this context, it is important to note that the reports and studies on the effectiveness of blocking and filtering applications appear to indicate that there is not yet any technology which could not be circumvented and provide full effectiveness in blocking or filtering illegal and harmful information whilst at the same time avoiding blocking entirely legal information resulting in violations of freedom of speech.

Beyond the potential negative economic aspects, several speakers at the Copycamp conference rang the alarm bells over the potential fallout of round-the-clock obligatory monitoring and filtering of user content on the net. Diego Naranjo from the European Digital Rights initiative (EDRi) reported: “I heard one of the EU member state representatives say, ‘Why do we use this (filtering system) only for copyright?’,” he said. The idea of bringing down the unauthorised publication of copyrighted material by algorithm was “a very powerful tool in the hands of government,” he warned.

In contrast to the dark picture presented by many activists on copyright, multi-purpose filtering machines and the end of ownership in the time of the internet of things, chances for reform are presented for various areas of rights protection.

EU copyright reform itself is a chance, argued Raegan MacDonalds from the Mozilla Foundation, calling it “the opportunity of a generation to bring copyright in line with the digital age, and we want to do that.” Yet the task, like in earlier copyright legislative processes, is to once more expose what she described as later dismantled myths of big rights holders, that any attempt to harmonise exceptions would kill their industry.

Non-Americans should not be satisfied with this state of affairs, which basically amounts to Americans fighting with other Americans about how to run the world.

that is, the idea that people should have a say in the rules that govern their activities. The Manila Principles, moreover, place an inordinate emphasis on domestic courts to regulate platforms, even though, as my co-author Keller notes, courts lack the expertise and policy-making capacity to do so.

What all of these proposals have in common, beyond adopting the American free-speech debate as their starting point, is that they treat these large platforms as an unalterable fact of life. They consider the main question to be not whether these platforms should be making decisions for billions of non-Americans, but how they should make these decisions.

n the up-side, flexible standards would give platforms more leeway to figure out meaningful technical improvements, and perhaps arrive at more nuanced automated assessment of content over tim

The down-sides of open-ended SDOC standards could be considerable, though. Proactive measures devised by platforms themselves would, even when coupled with transparency obligations, be far less subject to meaningful public review, accountability,