scholarly journals Why Keep a Dog and Bark Yourself? From Intermediary Liability to Responsibility

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
Due Process ◽  
Self Regulation ◽  
Public Enforcement ◽  
Private Ordering ◽  
Recent Developments ◽  
Blocking Orders ◽  
Utilitarian Approach ◽  
Intermediary Liability ◽  
Content Regulation ◽  
Safe Harbours

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum. In this context, this paper would like to explain the recent developments in intermediary liability theory and policy within a broader move towards private ordering online. Public enforcement lacking technical knowledge and resources to address an unprecedented challenge in terms of global human semiotic behaviour would coactively outsource enforcement online to private parties.Online intermediaries’ governance would move away from a well-established utilitarian approach and toward a moral approach by rejecting negligence-based intermediary liability arrangements. Miscellaneous policy tools—such as monitoring and filtering obligations, blocking orders, graduated response, payment blockades and follow-the-money strategies, private DNS content regulation, online search manipulation, or administrative enforcement—might reflect this change in perspective. In particular, governments—and interested third-parties such as intellectual property rightholders—try to coerce online intermediaries into implementing these policy strategies through voluntary measures and self-regulation, in addition to validly enacted obligations. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet. In this sense, the intermediary liability discourse is shifting towards an intermediary responsibility discourse.Further, enforcement would be looking once again for an ‘answer to the machine in the machine’. By enlisting online intermediaries as watchdogs, governments would de facto delegate online enforcement to algorithmic tools. Due process and fundamental guarantees get mauled by technological enforcement, curbing fair uses of content online and silencing speech according to the mainstream ethical discourse.

scholarly journals A Role for Emotional Granularity in Judging

2019 ◽  
Vol 9 (9(5)) ◽  
pp. 557-576 ◽  
Author(s):  
Maria Gendron ◽  
Lisa Feldman Barrett
Keyword(s):  
Decision Making ◽  
Self Regulation ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Classical View ◽  
Empirically Supported ◽  
Recent Developments ◽  
Toma De Decisiones ◽  
The Mind ◽  
The Brain

Emotions are traditionally viewed as detrimental to judicial responsibility, a belief rooted in the classical view of the mind as a battle ground between reason and emotion. Drawing on recent developments in psychology and neuroscience we propose that the brain uses past experience, organized as concepts, to guide actions and give sensations meaning, constructing experiences such as “fear” or “anger”. Wisdom comes from skill at constructing emotions in a more precise and functional way, a skill called “emotional granularity”. Studies show that individuals who are more emotionally granular have better function across a range of domains, including self regulation and decision making. We propose that effective judicial decision-making does not require a dispassionate judge, but a judge who is high in emotional granularity. We lay out an empirical agenda for testing this idea and end by discussing empirically supported recommendations for increasing emotional granularity in the judiciary. Tradicionalmente, se ha considerado que las emociones son perjudiciales para el desempeño responsable de la labor judicial, una creencia enraizada en la concepción clásica de la mente como campo de batalla entre razón y emoción. Partiendo de nuevos descubrimientos en psicología y neurociencia, argumentamos que el cerebro usa la experiencia pasada, organizada como conceptos, para guiar las acciones y dar sentido a las sensaciones, construyendo experiencias como “miedo” o “ira”. La sabiduría proviene de la habilidad en construir emociones de un modo más preciso y funcional, habilidad denominada “granularidad emocional”. Los estudios muestran que los individuos más granulares emocionalmente funcionan mejor en varios dominios, incluyendo la autorregulación y la toma de decisiones. Argumentamos que la toma de decisiones eficaz en judicatura no requiere de un juez desapasionado, sino de un juez que tenga alta granularidad emocional. Proponemos un programa empírico para poner a prueba esa idea, y concluimos con un debate de recomendaciones de base empírica para aumentar la granularidad emocional en la judicatura.

Professional Society Codes of Conduct: Their Use & Misuse – An Ethical Problem Upon Which the Integrity of Science Rests

2020 ◽  
Author(s):  
Sadredin Moosavi
Keyword(s):  
Scientific Community ◽  
Due Process ◽  
Scientific Practice ◽  
Human Subjects ◽  
Ethical Problem ◽  
Self Regulation ◽  
Codes Of Conduct ◽  
Scientific Work ◽  
Professional Society ◽  
Professional Societies

<p>The scientific community has a long history of self-regulation, with accepted public standards regarding the ethical conduct of research, treatment of human subjects and plagiarism. Violations of these widely accepted standards have been investigated and enforced via universities, funding agencies and publishers using their employment, financial and copyright relationships with members of the scientific community. Some modicum of fairness protecting both sides of the relationship arises from an open process, the ability of either party to seek other partners for their work and public shaming of miscarriages of justice committed by either side. By focusing directly on scientific work and the evidence used to support it where scientific expertise is relevant; these standards have worked reasonably well in keeping science honest without silencing scholars whose work is not currently accepted by the mainstream. Such science is by definition self-correcting and warrants public faith in the integrity of its findings.</p><p>Recently, these standards have been expanded into broad Codes of Conduct including regulation of behavior normally reserved for national legal systems built on clearly defined constitutional due process rights, which professional societies lack the jurisdiction, expertise, resources and will to protect. While lacking legal authority, the shadow tribunals these codes create have significant ability to impact the careers of those accused of transgressing their dictates. Such extra-legal bodies, often staffed by non-scientists serving as investigator, prosecutor, judge and jury, undermine academic freedom and the expression of diverse ideas required for a healthy, inclusive scientific community. Instead of being judged on their research, scientists now risk being bullied out of the field on the basis of social considerations reflecting the opinion of unelected code compliance officers acting to fulfill the agenda of professional society leaders rather than those officials elected to enforce national laws. These behavioral tribunals are the anti-thesis of scientific practice and threaten to undermine public faith in the integrity of science.</p><p>This presentation examines several cases from the recent scientific literature. The merits of each case are evaluated using the professional society code of conduct applied to the scientists in question, with outcomes for the parties involved and wider implications of the case discussed. The results suggest that professional society codes of conduct remain capable of assessing the merits of scientific research though social pressure to favor particular demographic groups is undermining the process. The same analysis indicates that professional societies are not competent in assessing behavior via their codes of conduct due to fundamentally flawed investigatory mechanisms and lack of due process protections. Strong biases in society leadership allows misuse of codes of conduct to unlawfully impose a policy agenda on the community, despite evidence that such policy is at odds with, and harmful to, scientific practice. Public belief in the integrity of science will erode if the scientific community fails to disavow and halt the misuse of professional society codes of conduct to regulate behavior in a fashion that no national legal system would condone.</p>

Legal Pluralism in European Contract Law

2020 ◽  
Author(s):  
Vanessa Mak
Keyword(s):  
Self Regulation ◽  
New Economy ◽  
State Regulation ◽  
Private Governance ◽  
European Contract ◽  
Consumer Markets ◽  
Contractual Relationships ◽  
Recent Developments ◽  
Platform Economy ◽  
European Contract Law

The relevance of contracting and self-regulation in consumer markets has increased rapidly in recent years, in particular in the platform economy. Online platforms provide opportunities for businesses and consumers to connect with strangers, often across borders, trading products, and services. In this new economy, platform operators create, apply, and enforce their own rules in their contractual relationships with users. This book examines the substance of these rules and the space for private governance beyond the reach of state regulation. It explores recent developments in lawmaking ‘beyond the state’ with case studies focusing on companies such as Airbnb and Amazon. The book asks how common values and objectives of EU law, such as consumer protection and contractual fairness, can be safeguarded when lawmaking shifts to a space outside the reach of state law.

Addressing Infringement: Developments in Content Regulation in the US and the DNS

2020 ◽  
pp. 630-646
Author(s):  
Annemarie Bridy
Keyword(s):  
Intellectual Property ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Due Process ◽  
Protocol Stack ◽  
Domain Name System ◽  
Application Layer ◽  
Domain Names ◽  
The Us ◽  
Content Regulation

The reach of privately ordered online content regulation is wide and deepening. It is deepening with reference to the internet’s protocol stack, migrating downward from the application layer into the network’s technical infrastructure, specifically, the Domain Name System (DNS). This chapter explores the recent expansion of intellectual property enforcement in the DNS, with a focus on associated due process and expressive harms. It begins with a technical explanation of the operation and governance of the DNS. It goes on to discuss existing and proposed alternative dispute resolution (ADR) regimes for resolving intellectual property complaints involving domain names. In doing so, it compares the long-running Uniform Dispute Resolution Policy (UDRP) for adjudicating trademark cybersquatting claims to newer ADR programmes targeting copyright infringement on websites underlying domain names.

China’s IP Regulation and Omniscient Intermediaries: Oscillating from Safe Harbour to Liability

2020 ◽  
pp. 276-294
Author(s):  
Danny Friedmann
Keyword(s):  
Service Providers ◽  
Technological Development ◽  
Self Regulation ◽  
Holistic Approach ◽  
Case Law ◽  
Republic Of China ◽  
Commerce Law ◽  
Intermediary Liability ◽  
The Many ◽  
The One

There are multiple forces that influence intermediary liability regulation in the People’s Republic of China (China). This chapter applies a holistic approach by analysing these individual forces to assess their influence on intermediary liability regulation in China. On the one hand, China’s draft E-Commerce Law raises the standard for knowledge before infringing information can be removed, while the many laws and regulations involved in censorship exclude the possibility of ignorance. On the other hand, there is case law, recently codified in guidelines for Beijing courts, which reinforces the duties of care. Moreover, this chapter connects discussions about the desirability of safe harbours and the degree of filtering requirements with the ongoing technological development of big data and artificial intelligence in China. In this context, the chapter also discusses self-regulation and pressure for online service providers to take on more responsibility in China.

Response: Recent Development regarding Judicial Review of Legislative Process in Israel

2020 ◽  
Author(s):  
Gonen Ilan
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
The State ◽  
Legislative Process ◽  
High Court ◽  
Court Of Justice ◽  
State Economy ◽  
Recent Developments ◽  
First Time

Abstract In an article published recently in the Statue Law Review,1 Prof. Shucheng Wang has examined the deferential approach to judicial review of the legislative process as adopted by the CFA,2 due to the Leung3 case. In this short response, I focus on two issues that are not mentioned in Prof. Wang’s article but that are crucial for understanding recent developments concerning judicial review of the legislative process in Israel by Israel’s High Court of Justice (HCJ). First, this response will present the most recent, and more crucial, ruling of the HCJ from late 2017 in the Quantinsky v. The Israeli Knesset (2017)4 which established a new precedent and in which, for the first time in Israel’s history, a new law was invalidated due to flaws in the legislative process. Second, I wish to emphasize the specific type of law that was invalidated and that is more prone to flaws in the legislative process: The Omnibus Law of Arrangement in the State Economy, which includes hundreds of budget statutes, and is characterized by a very unique and hasty legislative process. Therefore, this response wishes to complement Prof. Wang’s thesis and provide an update regarding the Israeli HCJ judicial approach of due process of legislation.

scholarly journals Information control by public punishment: The logic of signalling repression in China

2020 ◽  
pp. 0920203X2096301
Author(s):  
Lotus Ruan ◽  
Jeffrey Knockel ◽  
Masashi Crete-Nishihata
Keyword(s):  
Social Media ◽  
Self Regulation ◽  
The State ◽  
Regulatory Environment ◽  
Information Control ◽  
State Repression ◽  
Private Companies ◽  
The Public ◽  
The Government ◽  
Intermediary Liability

When does repression of online expression lead to public punishment of citizens in China? Chinese social media is heavily censored through a system of intermediary liability in which the government relies on private companies to implement content controls. Outside of this system the Chinese authorities at times utilize public punishment to repress social media users. Under China’s regulatory environment, individuals are subject to punishment such as fines and detention for their expressions online. While censorship has become more implicit, authorities have periodically announced cases of repression to the public. To understand when the state escalates from censoring online content to punishing social media users for their online expressions and publicizes the punishment, we collected 468 cases of state repression announced by the authorities between 1 January 2014 and 1 April 2019. We find that the Chinese authorities most frequently publicize persecutions of citizens who posted online expression deemed critical of the government or those that challenged government credibility. These cases show more evidence of the state pushing the responsibility of ‘self-regulation’ further to average citizens. By making an example of individuals who post prohibited content even in semi-public social media venues, the state signals strength and its determination to maintain authority.

Antarctic tourism: an overview of 1992/1993 season activity, recent developments, and emerging issues

Polar Record ◽  
1994 ◽  
Vol 30 (173) ◽  
pp. 105-116 ◽  
Author(s):  
Debra J. Enzenbacher
Keyword(s):  
International Association ◽  
Self Regulation ◽  
Tourism Industry ◽  
Policy Makers ◽  
Treaty Negotiations ◽  
Recent Developments ◽  
Emerging Issues ◽  
Antarctic Treaty ◽  
The Antarctic ◽  
Tour Operator

AbstractAntarctic tourism is evolving at an ever-increasing pace. More than 7000 tourists, a record number, visited the Antarctic aboard cruise ships, yachts, and aircraft during the 1992/1993 season. As annual tourist, tour operator, cruise, and cruise ship totals increase, so do the number of landing sites used for tour visits. Although the Antarctic tourism industry was once characterized by small expedition-sized vessels, 50% of Antarctic cruise passengers travelled aboard ships with a capacity of 250 or more during the 1992/1993 season. These developments present challenges to Antarctic policy makers. There is growing awareness that environmental issues arising from Antarctic tourist activity are increasingly important, but, to date, comprehensive data on Antarctic tourism are not available from a central source. This study compiles data from numerous sources in order to develop a clearer picture of the nature and scale of Antarctic tourist activity. In an effort to present an overview of Antarctic tourism, data from the 1992/1993 season are considered along with important issues in the tourism debate, including significant trends and recent developments in the tourism industry, Antarctic tourism research, tourist landings in Antarctica, industrial self-regulation, emerging issues, Antarctic Treaty negotiations on tourism, and national initiatives to improve dialogue between the industry and Antarctic policy makers. Research is underway to understand better the nature of tourist visits and the effect they have on the Antarctic environment and related ecosystems. The International Association of Antarctica Tour Operators (IAATO) plays an important role in disseminating information to tour operators planning visits to the Antarctic, but more could be done by this organization and non-members of IAATO to comply with Treaty provisions. Improved compliance with Treaty provisions and tour operator and visitor guidelines is needed, at least until the environmental effects of tour visits are better understood and the more comprehensive regulation set out in the Protocol on Environmental Protection to the Antarctic Treaty is implemented.

scholarly journals Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Internet Access ◽  
Private Ordering ◽  
Corporate Rights ◽  
Law Faculty ◽  
Management Technology ◽  
College Of Law ◽  
Three Strikes ◽  
Intermediary Liability ◽  
Copyright Enforcement ◽  
University Of Idaho

At the end of 2008, the music industry ended its five-year campaign of litigation against individual peer-to-peer file sharers and announced that it would be shifting its online copyright enforcement efforts to a model known as graduated response. The most widely publicized form of graduated response is a "three strikes and you're out" model, in which a user's Internet access is suspended or terminated by his or her ISP following that user's receipt of three successive notices of copyright infringement. As it has been presented by entertainment industry trade groups, the enforcement paradigm embodied in graduated response forgoes litigation and statutory mandates in favor of voluntary cooperation between rights owners and Internet access providers - parties that have long been at loggerheads with each other in the war on piracy.This article seeks to explain, in the context of evolving network management technology and its impact on intermediary liability rules, why the time may be ripe for broadband providers and corporate rights owners to renegotiate their respective roles in the project of online copyright enforcement. Following an analysis of the turn to private ordering and technology-based mechanisms for policing copyrights online, this article proposes a set of principles to guide the implementation of graduated response regimes so that consumers, who have come to rely on uninterrupted Internet access for everything from banking to blogging, do not fall victim to immature filtering technologies and overzealous enforcement.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals The moment of Leveson: Beyond ‘First Amendment fundamentalism’ in news regulatory policies

2012 ◽  
Vol 18 (2) ◽  
pp. 51
Author(s):  
Paul K. Jones
Keyword(s):  
Public Service ◽  
Self Regulation ◽  
Broadcast Journalism ◽  
Regulatory Policies ◽  
Making Sense ◽  
The United Kingdom ◽  
Digital Convergence ◽  
The Moment ◽  
The Uk ◽  
Content Regulation

Australian discussion of the Leveson Inquiry has started and finished at asking whether ‘we’ suffer from precisely the same ethical malaise that led to phone-hacking in the United Kingdom. Yet as Leveson has unfolded it has become clear that its report will have international significance as a watershed moment in content regulation in a multi-platform future. A 30-year-old neoliberal orthodoxy has promulgated the view that digital convergence would mean the expansion of newspaper models of self-regulation to all future platforms. Broadcast models of structural and content regulation would disappear along with spectrum scarcity and other ‘old media’ trappings. All that is now at serious risk. Instead, for the UK at least, the public service obligations placed on commercial broadcasters now appear a more evident success story in maintaining journalistic integrity. Convergence might mean instead that public service obligations should be applied to newspaper publishers. However, making sense of all this from Australia is rendered difficult by the failure of our regulatory regimes to set such standards for commercial broadcast journalism at even levels achieved in the US at its broadcast regulatory high watermark. This article thus weighs up recommendations of the Finklestein and Boreham reviews in this context.

Sign in / Sign up

Export Citation Format

Share Document