June 28, 2009

I think this is a strong issue. A number of the articles here have certainly made me think hard, especially about EU law. Remember that SCL members can log on to the Web site and comment on any one of these articles. I would love to hear more views on Ian McDougall’s approach to data protection and surely you want to have your say on behavioural targeting.


Cultural Divide


Perhaps influenced by the recent elections for the European Parliament, the many pieces that refer to EU law have made me think about our capacity to deal with it properly. I think there is a real cultural divide.


I have posted a blog entry on the topic but my main point bears briefer repetition here: essentially I believe that we are not good at thinking outside the language of law that has informed our judgement (and judgments) for many years. We thus end up translating EU law inelegantly – and the very fact that we have to make an effort to ‘translate’ rather than think in the language of EU law is beginning to cause problems. Think of software patents and Viviane Reding’s recent intervention on Phorm and surveillance and you’ll see what I mean. I was very struck too by a comment from Monica Horten, whose article on the Telecoms Package appears on p 6, in which she highlighted the difficulties that many of us have when applying the concepts of human rights and liberties to the context of telecoms (which is supposed to be about wires and electrics).


That inelegance may be inevitable, as may some problems. As Simon Deane-Johns points out in a comment on my blog, the root may very well be the divide between the practitioner in civil law and the practitioner in a common-law jurisdiction. I suspect that the whole history of the various nations in the EU affects attitudes to implementation – if you were under dictatorial regime in recent memory, it is going to affect your attitude to surveillance.


Our aim in forthcoming issues is to explore the roots of the divide, to trace the different attitude across the EU and beyond and the influence those attitudes have on implementation in other countries and on drafting at the EU centre. I would love to hear from prospective authors with expertise in other jurisdictions to help us cover all the bases.


Musical Teaser


For those of you who are very bored, here’s a teaser to waste a little valuable time.


This issue has a connection with Gerry and the Pacemakers, Joni Mitchell, Bryan Ferry and Craig David – at least in my warped mind it does. E-mail me the names of the authors of the articles I have in mind in the order of the named artists above. There is a bonus for the person who works out why the Carpenters only just got away. The first person to do so wins a drink at the SCL Conference and the right to start off the Friday night karaoke*. I’ll leave it on the bar for you if you are foolish enough not to go.


And no, sadly, Gerry Marsden did not have a hit with Behavioural Targeting of Internet Advertising. You’re thinking of You’ll Never Surf Alone.


Laurence Eastham


*In the interests of accurate trade descriptions, and self-preservation, I should point out that this event is a figment of my imagination.