European Law Journal

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• Democracy through law The Transatlantic Reflection Group and its manifesto in defence of democracy and the rule of law in the age of “artificial intelligence”
• Passenger name record (PNR) data: How the EU is promoting (virtual) security by actually limiting Passengers' fundamental rights

  The use for security purposes of airline passenger data (PNR) has gradually come to the fore especially in EU‐US relations because of the tension between those who considered the use of PNR an effective tool in the fight against terrorism and those who considered the interference in citizens' privacy disproportionate. The Court of Justice intervened decisively on the issue in June 2022 with the “Ligue des Droits Humains” Judgment C‐817/19. This ruling should have been followed by a review of the national legislations that transposed the Directive. On the contrary, the Member States are still going in the opposite direction to that indicated by the Court.

• Law and common good in the digital age: Where art thou?; In this issue
• A Manifesto on Enforcing Law in the Age of ‘Artificial Intelligence’

  Building upon A Manifesto In Defense of Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, we, the Transatlantic Reflection Group on Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, have reconvened to draft a second consensus manifesto that calls for the effective and legitimate enforcement of laws concerning AI systems. In doing so, we recognise the important and complementary role of standards and compliance practices. Whereas the first manifesto focused on the relationship between democratic law‐making and technology, this second manifesto shifts focus from the design of law in the age of AI to the enforcement of law. Concretely, we offer 10 recommendations for addressing the key enforcement challenges shared across transatlantic stakeholders. We call on those who support these recommendations to sign this manifesto. The Fifth Edition of The Athens Roundtable on AI and the Rule of Law will take place on November 30th and December 1st, 2023. It will delve into pressing governance challenges posed by foundation models and generative AI across jurisdictions.

• The accountability of non‐governmental actors in the digital sphere: A theoretical framework

  The last decade has seen increasing demands for greater accountability in digital governance. What, however, does accountability require and what normative goods does it serve? This article develops a general framework for assessing digital accountability focused on four normative goods: openness, non‐arbitrariness, effectiveness and publicness. As the article will evidence, claims for digital accountability often refer to deficits relating to one or more of these goods. While scholarly attention has deservedly focused on tying powerful digital actors to rule of law guarantees, the article argues that accountability offers an important normative yardstick to allow citizens to contest digital decisions beyond strict legality. The framework therefore provides a basis for both conceptually disaggregating and normatively forwarding accountability claims in the digital sphere.

• The public interest dimension of the single market for data: Public undertakings as a model for regulating private data sharing

  Data plays a crucial role for society. Accordingly, building a ‘single market for data’ by increasing the availability of public and private data ranks high on the EU policy agenda. But when advancing legal data sharing regimes, there is an inevitable need to balance public and private interests. While the European Commission continues to push for more binding rules on data sharing between private businesses, public undertakings are already covered by mandatory rules. Exploring how the law addresses their data offers valuable lessons on the reconciliation of market reasoning with the public interest. In particular, this article inquires into the recast Open Data and Public Sector Information Directive, the Data Governance Act, and different national rules which regulate access to and re‐use of public undertakings' data. It identifies five striking characteristics and discusses their potential and limitations for regulating data sharing by private undertakings. The implications serve as a guidepost for advancing the wider debate on building a single market for data in the EU. Some of them are already reflected in the upcoming EU Data Act.

• The quadrangular shape of the geometry of digital power(s) and the move towards a procedural digital constitutionalism

  The paper explores the evolution of private powers in the digital landscape, developing a quadrangular systematisation of such a phenomenon based on four main aspects: space, values, (private) actors, and (digital) constitutional remedies. Taking a trans‐Atlantic approach, the paper shows how these categories, typical of constitutionalism, apply to the context of the Internet and of new digital technologies both in the United States and in Europe. On the one hand, the United States has up to now maintained the supremacy of the notorious Section 230 of the Communications Decency Act. On the other hand, European legislation has undergone a significant change, moving from a phase of digital liberalism, of which the 2000 E‐Commerce Directive is the emblem, towards a new era of digital constitutionalism, passing through the age of judicial activism of European courts. In this sense, Europe has increasingly attempted to introduce limits to private (digital) powers, with a view to better protect and enforce (also horizontally) users' fundamental rights. Additionally, the evolution of digital constitutionalism, from a vertical‐sectoral approach to a horizontal and procedure‐based one, significantly showcased by the recent Digital Services Package, is underscored, signalling the recent movement of the EU into its second phase of digital constitutionalism. In this respect, the paper argues that the great benefit of stressing the procedural dimension, which may be defined as a European application of “due (data) process” to the relationship between individuals and private powers, is that it is potentially able to help consolidate a (necessary) trans‐Atlantic bridge.

• Manipulation by algorithms. Exploring the triangle of unfair commercial practice, data protection, and privacy law

  The optimisation of sales practices in consumer markets through machine learning not only harbours the potential to better match consumer preferences with products, but also risks to facilitate the exploitation of consumer weaknesses discovered via data analysis. More specifically, recent technological advances have brought us to the edge of mind‐reading technologies, which automatically analyse mental states and adapt offers accordingly, in potentially manipulative ways. This article shows that, in market contexts, the challenges of manipulation by algorithm necessitate an integrated understanding of unfair commercial practice, data protection, and privacy law. It maps the interactions between these contiguous yet distinct fields of law, and draws on economics and computer science to develop a novel framework to deal with algorithmic influence. Furthermore, it critically discusses the Commission proposals for the Digital Services Act and the Artificial Intelligence Act, and suggests to complement them with more broadly applicable measures to mitigate algorithmic manipulation.

• The collective welfare dimension of dark patterns regulation

  Dark Patterns are interface design elements that can influence users' behaviour in digital environments. They can cause harm, not only on an individual but also a collective level, by creating behavioral market failures, reducing trust in markets and promoting unfair competition and data dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent laws, and thus call for policy intervention. This article reviews how existing and proposed laws in Europe and the US, namely the EU Digital Services Act and Digital Markets Act as well as the U.S. DETOUR and AICO Acts, address these collective dimensions of welfare and add to existing protection. We find that the novel legislative measures attain that goal to varying degrees. However, the collective welfare perspective may prove useful to both support a risk‐based approach to the enforcement and provide guidance as to which practices should be addressed as priority.

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