Laurence Eastham considers some tough questions and wishes the CJEU in Svensson had given us more guidance on hyperlinks, or a lot less
When writing introductions to articles for this issue, I found that I had to ration my use of the phrase 'asks tough questions'. Two articles touching on data protection are prime examples.
Lillian Pang and Peter Lee made me wonder whether the immense effort that is made to protect data properly reflects the value that the public in general ascribe to their privacy. According to the ICO, 62% of people are concerned about how apps use their data; surely they are the ones that are concerned about the effect of cake on their weight but still eat all the cake? Once I got past the first shock of immensely intimate mobile phone conversations being carried out in trains or on the street, I was considerably less shocked by the realisation that people were casually sharing data via various apps. I just thought that there was a generational divide: some significant part of a younger generation didn't care about privacy. While reading 'The Price of Convenience', it dawned on me that I had joined that part of the younger generation in a 'past caring' (not careless) approach to accepting various intrusive pieces of software because of the convenience they offered. I suspect that there may come a time when we look at data protection authorities as if they were the curators of a museum. I hope not.
Kuan Hon's article asks questions about the basis for the data protection control of cloud computing. What's more, she supplies pretty convincing answers too. But I doubt that the logic that underpins her suggestion that the realities of control are a better basis for determining responsibility than geography will trump the long-standing commitment to the importance of land borders. Where politics and logic meet, logic tends to get a bloody nose. Arguably, Safe Harbor demonstrates this neatly since it is shriekingly obvious that it does not work but of course it will not be threatened because the EU cannot be a data island and political and economic realities decree that we must pretend that it works.
Cases, and Unanswered Questions
This issue is packed with case reports and analysis. Even so, I was sorry that we had to postpone the inclusion of the Databases and Engines piece on Innoweb from Lucy Kilshaw, Susan Barty and Fionnuala Dorrity (it is a 'bonus track' for those of you accessing the e-pub version and is online too of course) We did not have time to cover Lush v Amazon or the Svensson hyperlinks case in this issue. I hope Lush is appealed as its facts would serve well if the Court of Appeal were trying to offer guidance in the e-commerce sphere.
Svensson deserves careful analysis and long-term reflection. As I write this, more and more comments are being published online that question that judgment – we have collected many of them together in our web site coverage. I suspect that the CJEU will come to regret its willingness to offer guidance which stretched beyond that which was absolutely necessary. It might have dodged some of the criticism if it had just stuck to the narrow facts of the case before it. As it is, the issues about 'act of communication' and 'new public' are likely to create more uncertainty than could possibly have been imagined following the initial wide welcome. The CJEU has given neither a narrow judgment on limited facts nor comprehensive and detailed guidance on all aspect of the issue, but something betwixt and between.
My first reaction to the judgment was quite reserved, not least because I am not really keen on the endorsement of 'framing'. I think 'framing' is one of those things that we have come to accept rather than being 'right'; it seems like bad manners to me at the very least. But I missed one obvious example that sets difficulties that the judgment failed to address. On the SCL web site, as part of SCL's commitment to its charitable educational function, every article is open to all when first published. Later, after a week or so or when included in an issue of the magazine, most articles become available only to SCL members or those, such as students and trainees, who have special access privileges. But there is no way for anyone setting a link to know which is which.
SCL's situation is unusual but by no means unique. There are many complicated access restrictions and variable permissions out there. I really hope that the CJEU revisit this issue, next time with the benefit of an Advocate General's Opinion, and grapples with some of those more intricate linking issues. It is hard to believe that any judgment brings real clarity when it is welcomed as supportive of their positions by both the MPAA and TorrentFreak!