Techlaw News Round-up

ICO to research how using AI/machine learning recommendation systems may protect people from content related harm, ICO issues report on participant in Privacy Sandbox trial, Law Society publishes report on how neurotechnology may influence the practice of law, and more in this week’s round-up of UK and EU techlaw news developments not covered elsewhere on the SCL website.

UK Law

ICO to research how using AI/machine learning recommendation systems may protect people from content related harm

The ICO is researching how product and developer teams working with AI/ML driven recommendation systems apply technical and organisational measures to protect people from content related harm. It says that it is particularly interested in any measures put in place to protect children or other vulnerable communities. This could include measures to prevent material and non-material harm from advertising, inappropriate content or other adverse effects from profiling individuals and then delivering them content on the basis of this profiling. It requests from designers, engineers and product team members about how they consider data protection in the design of AI/ML driven recommendation systems so that it can create more practical support. It defines recommendation systems as everything from ad targeting to ranking and personalisation systems. The consultation ends on 30 September 2022.

ICO issues report on participant in Privacy Sandbox trial

FlyingBinary is a “deep tech” company which provides innovative products and services in the information technology and online sector, including AI. FlyingBinary entered the Sandbox to develop an online service which seeks to assist with the traditional mental healthcare of patients with conditions such as eating disorders. The current planned approach is that clinicians will recommend this online service to their patients as part of their existing care. It is leaving the trial this month and the ICO has issued a report on it. It says that FlyingBinary’s participation in the Sandbox has helped the ICO to continue to develop and build upon its knowledge of the challenges that technology providers can face in seeking to comply with the requirements of the UK GDPR, the DPA 2018 and the Children’s Code. The ICO and FlyingBinary have also considered the risks to children from the processing of their personal data within an online service.

Law Society publishes report on how neurotechnology may influence the practice of law

The Law Society has published a report about how neurotechnology may influence the practice of law. Neurotechnology is used to interact directly with the brain by monitoring and recording brain activity or acting to influence it. Future developments could lead to lawyers considering the human rights implications of brain monitoring and manipulation. Neurotechnology can be implanted in the brain, but it may also be external to the body in the form of a headset, wristband or helmet. The report sets out the challenges and opportunities that developments in neurotechnology may bring for the profession, and impact it may have on cognitive performance and the way lawyers work.

High Court awards £1 damages in Bitcoin invention case

The High Court has ruled in Wright v McCormack [2022] EWHC 2068 (QB) that tweets that alleged that a computer scientist's claim to have invented Bitcoin was fraudulent had caused serious harm to the scientist's reputation. However, the scientist had presented deliberately false arguments about how serious the harm was. Therefore, the courts said that an award for more than nominal damages would be unfair. People have traditionally believed that the cryptocurrency Bitcoin was invented by someone using the pseudonym Satoshi Nakamoto. The claimant said that he was Satoshi. The defendant denied that the claimant was Satoshi in tweets and in a video discussion which was livestreamed on the internet and recorded and then posted to YouTube. The claimant said that this had caused serious harm to his reputation. For example, he claimed that academic conferences had withdrawn invitations for him to speak due to the publications. However, the defendant’s evidence contradicted the scientist’s claims. The court said that if the scientist had not made a deliberately false case about serious harm, the court would have found more than minimal damages were appropriate. Due to the false claims, the court awarded nominal damages of £1.

IPEC rules on authorship and infringement of literary copyright works

The Intellectual Property Enterprise Court has considered the case of Costa v Dissociadid Ltd and another [2022] EWHC 1934 (IPEC). It ruled that the claimant was not the joint author of one of several copyright works (the parties were joint authors of the others). It also decided that the defendants had infringed the claimant's copyrights after a bare licence that the claimant had granted had been terminated. However, the claimant had caused the defendants loss by unlawful means by sending takedown notices to YouTube. This led to YouTube removing videos using the work from a channel. The defendants originally ran the channel and the claimant had contacted the defendants about co-operating on the project, but ultimately the parties had a serious disagreement.

PSA consults on general permission for SMS virtual chat services

The Phone-paid Services Authority is consulting about its proposal to permit providers of SMS virtual chat services to operate such services without complying with requirement 3.2.12. of the PSA’s Code of Practice. This rule says that providers must issue receipts after every transaction. As an alternative, the PSA is proposing that receipts could be sent to consumers at £10 spend intervals and 24 hours after the last consumer action in instances where this threshold is not reached. The proposals have been developed following pre-consultation with interested industry members. The consultation ends on 29 September 2022.

International law

FTC explores rules on commercial surveillance and lax data security practices

The Federal Trade Commission has announced it is exploring rules to crack down on harmful commercial surveillance and lax data security. Its Advance Notice of Proposed Rulemaking seeks feedback about the harms stemming from commercial surveillance and whether new rules are needed to protect people’s privacy and information. It also asks about a wide range of concerns about commercial surveillance practices. It says that while little is known about the automated systems that analyse data companies collect, research suggests that these algorithms are prone to errors, bias, and inaccuracy. As a result, commercial surveillance practices may discriminate against consumers based on legally protected characteristics like race, gender, religion, and age, harming their ability to obtain housing, credit, employment, or other critical needs. It also says that commercial surveillance is difficult to avoid. Some companies require people to sign up for surveillance as a term of service. Consumers who do not wish to have their personal information shared with other parties may be denied service - or required to pay a premium to keep their personal information private. After consumers sign up, companies may change their privacy terms to allow for more expansive surveillance. Companies increasingly employ dark patterns or marketing to influence or coerce consumers into sharing personal information. The FTC has used its existing authority under the FTC Act to bring hundreds of enforcement actions against companies for privacy and data security violations. However, it says that this may not be enough to protect consumers. The FTC says that its ability to deter unlawful conduct is limited because it generally lacks authority to seek financial penalties for initial violations of the FTC Act. By contrast, rules that establish clear privacy and data security requirements across the board and provide the FTC the authority to seek financial penalties for first-time violations could provide incentives to all companies to invest more consistently in compliant practices.

Published: 2022-08-19T11:00:00

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