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Quo Vadis Digital Citizen? Can a person be only partially forgotten?

Jasna Čošabić, PhD

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In normal life, the answer would be no.
Usually, whether we are going to be remembered or forgotten is not something that we could opt for. We can indeed thrive to by our actions or deeds, but the final outcome of this psychological process is up to third persons having a good or bad perception about us.

In May 2014 the Court of Justice of the European Union (‘the ECJ’) has come to a milestone judgment saying that a person has a right to be forgotten. But the context where the person ought to be forgotten is internet. Not the real world. However, real enough to influence the life of a real person. Thus the ECJ tangled the right to privacy, the right to data protection and the right to expression in a digital world. It brought to internet life Directive 95/46, originaly designed to protect private data of persons processed either by automated means (computer data bases) or by non-automated means (traditional paper). The said Directive could not have envisaged the need for the protection of data on internet, since the internet itself was underdeveloped then.

Mr. Mario Costeja González, the complainant in this case, wanted the Google to remove information on the auction of his property which was published in a local newspapers distributed in Catalonia, Spain, 16 years before. The information consisted of 36 words only. It was published on two dates only. However, still after so many time has lapsed, anyone searching through the name of Mr. Gonzáles using Google, would be offered information about the said auction.

No society would benefit from knowing these few words on selling of his property. Nor would third persons. The only benefit, or more properly malafit was done to Mr. Gonzáles. He wished his name not to be connected with an event that existed many years before, that implied no criminal act nor offence nor damages to third persons.

The ECJ has recognised that by saying that the information to be erased is inadequate, irrelevant or no longer relevant, or excessive in relation to the lapse of time. It authorised Mr. Gonzáles, and other Gonzáleses alike to request search engines to erase the data.

However there we come to a problem. The search engine at issue is Google Inc. But it has its subsidiaries in all the European countries, such as google.es, google.fr, google.at, etc. Therefore Google could come to an idea to erase Mr. Gonzales’s name only from its European subsidiaries.

Why?
Because the judgment was issued by the ECJ, which is called the supreme court of the EU. And which formally does not have jurisdiction over USA, Australia or New Zealand.

And why not?
Because it is internet at issue. And internet does not have borders, at least not the classic ones. And because anyone in Europe could access google.es, but at the same time google.com. So if a person was erased from google.es, he still remains at google.com. And he is visible within Europe, at google.com, but also within USA, Australia, New Zealand, etc.

Let’s imagine that the ECJ judgment implies only his erasure from European Google subsidiaries. What could he do to have his name erased from Google.com accessible worldwide? Well, he could initiate the same proceedings before USA court. And Australian court. And New Zealand court. And African court. Actually before all other courts, apart from European which already gave its ruling. Would that be feasible? Justified? Protective of human rights? An answer may already appear to us.

But what is the relation between the real law and cyber law?
Classic legal theories recognise the teritorrial principle in law. With the emerging of international law, the strictly teritorrial approach was a bit modified, by spreading certain features to supranational level. We now face the emerging of a cyber law. In cyber law, uncertain is the teritorry, its control, the area of application. What is not uncertain are the subjects of law. They are still real. Their status is still certain. Therefore the ECJ judgment pointed out that the subjects of the right to erasure are the inhabitants of the EU. The category ‘inhabitants’ is in this case certain.

If we recall the well established case-law of the European Court of Human Rights, it has defined the jurisdiction of a state on a less formal manner. It took into consideration the effective jurisdiction. Not the one which was determined by borders. Nor the one recognised internationally. Therefore the formally Cyprus teritorry could be considered as belonging to Turkey for the purpose of Turkey being respondent party for violations of human rights (see Cyprus v. Turkey, ECtHR judgment of 2001). Such a legal construction enabled the Court to act in an effective manner when dealing with human rights violations which needed a real remedy. A remedy which is effective.

In this case, strictly formally speaking, Google supsidiaries at the European teritorry would be liable. However, can we restrict the information so as to flow only in Europe? Can we determine with certainty that no person in Europe will use the Google.com world url. The answer would be NO. If we have a new media for spreading information potentially violating human rights, we must adjust our legal rules applicable to it. And apparently the praxis.

On this account, the ECJ did make a step further by giving the Directive 95/46 its cyber life, although almost twenty years ago when it was created no such spread of internet was imaginable. It also did make a link of the right to be forgotten to the right to respect for private life under the European Convention on Human Rights, the instrument which already celebrated its 60 years birthday. Such connections make those instruments living together with the growth of society.

Should we then confine ourselves to some old outdated theories? Should we close eyes to real life? The European Court of Human Rights pointed that the right to privacy should not be interpreted restrictively (Amann v. Switzerland, ECtHR judgment of 2000, Rotaru v. Romania, ECtHR judgment of 2000, etc.). Why should we then restrict the application of ECJ judgment to European subsidiaries of Google? Would the purpose of the protection of EU inhabitant be achieved if we act restrictively? If an international principle in dealing with human rights violations is restitutio in integrum, can then a person be ‘in integrum’ forgiven if we allow only for narrow application of ECJ judgment? By answering these questions, we will determine the tommorow’s effect of similar violations. We have to imagine how the tommorow would look like in order to act now. And to act with no constraints that would impair the efficiency of law.

The Hong Kong Deputy High Court Judge, Marlene NG, on the other side of the world, in her judgment of August 2014, in a similar case, has said in concluding remarks to her judgment: ‘…the internet has become a universal medium.  The advantages of having easy access to a rich store of information are many, and they have been widely applauded.  But such benefit comes at a price; any risk of misinformation can spread easily as users forage in the web. The art is to find the comfortable equilibrium in between.’

We therefore have to accept the fact that the law must follow the growth of society, and not walk by it. The law should follow life and each segment of its development.

So the only logical answer to the first question of this text would remain: No, the person cannot be partially forgotten, neither in real life, nor in the cyber world.

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Digital Spending Increases, Greater Focus on Digital Strategy Is a Top Need for State Auditors

MD Staff

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photo: Deloitte

The 2018 Digital Government Transformation Survey released today by Deloitte and the National Association of State Auditors, Comptrollers and Treasurers (NASACT) reveals how its members are investing more in digital transformation, yet only 35 percent of respondents are satisfied with their organizations’ responses to digital trends. This is a drop of 29 points from the 2015 survey. Additionally, less than half of respondents stated they have a clear and coherent digital strategy.

“The survey reveals an eagerness for state financial professionals to use digital technologies on par with the private sector,” said R. Kinney Poynter, executive director, NASACT. “Our members want to take advantage of emerging technologies, but clearly impediments to being more digital remain.”

“One clear takeaway from the survey is that those NASACT member organizations who have a clear and coherent digital strategy consider their digital capabilities to be comparable or ahead of the private sector,” said Christina Dorfhuber, principal, Deloitte Consulting LLP, and a government and public services ERP strategy leader. “We also saw how respondents with a digital strategy were more satisfied with their organization’s reaction to new trends and more confident in their organization’s readiness to respond to new ones, demonstrating that much of an organization’s digital prowess hinges on that strategy.”

“The expectations for digital strategies and opportunities are clearly increasing for all organizations, including governments,” said Clark Partridge, state comptroller of Arizona and president-elect of NASACT. “As we expand our understanding, we can appropriately identify opportunities to leverage technology to re-engineer our processes and enhance the capacity of our workforce. The result is a greater capacity to successfully accomplish the work of government and deliver quality outcomes to citizens.”

The survey reveals three key themes:

A digital strategy is important. Most, but not all, respondents reported having a digital strategy and believe that there is more that needs to be done. Those with a digital strategy were more satisfied with their organization’s reaction to digital trends (54 percent versus 18 percent of respondents) and confident in the understanding of digital trends by their leaders (87 percent versus 30 percent).

Investing in automation and cognitive technologies. With more funding, organizations must determine which technologies to invest in. Currently only 11 percent of organizations reported a broad use of automation and cognitive technologies. Increasing these numbers will be critical as more audits are likely to be augmented by these technologies in the coming year.

Addressing the digital skills gap. While 65 percent of organizations indicated that training staff would be a key focus, 39 percent of organizations also noted they would augment staff with consultants and contractors. Additionally, only 48 percent of respondents believe their employees have sufficient skills to execute a digital strategy while 43 percent believe that employees have the skills for automation and cognitive technologies.

The report examined the need for more training and a skilled workforce in these new emerging technologies to eliminate the skills gap.

“Emerging technologies can have tremendous benefits for state organizations, but preparation is needed,” said William D. Eggers, executive director for Deloitte’s Center for Government Insights. “Public finance leaders looking to capitalize on emerging technologies should devise a roadmap for integrating these technologies into their day-to-day operations.”

The previous survey was conducted in 2015. This year’s survey includes feedback from more than 70 NASACT member offices. A more detailed analysis of the survey can be found here, including data specific to auditors, comptrollers and treasurers.

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AI Creating Big Winners in Finance but Others Stand to Lose as Risks Emerge

MD Staff

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Artificial intelligence is changing the finance industry, with some early big movers monetizing their investments in back-office AI applications. But as this trend widens, new systemic and security risks may be introduced in the financial system. These are some of the findings of a new World Economic Forum report, The New Physics of Financial Services – How artificial intelligence is transforming the financial ecosystem, prepared in collaboration with Deloitte.

“Big financial institutions are taking a page from the AI book of big tech: They develop AI applications and make them available as a ‘service’ through the cloud,” said Jesse McWaters, AI in Financial Services Project Lead at the World Economic Forum. “It is turning what were historically cost centres into new source of profitability, and creating a virtuous cycle of self-learning that accelerates their lead.”

The report points to Ping An’s One Connect and BlackRock’s Aladdin platform as prime examples of the trend:

In China, One Connect sells AI-powered services ranging from credit adjudication to instantaneous insurance claims settlement to hundreds of small and mid-sized Chinese banks and is expected to fetch up to $3 billion at public sale

In the US, Aladdin provides sophisticated risk analytics and comprehensive portfolio management tools that leverage machine learning to a range of asset managers and insurers and is expected by BlackRock’s Chief Executive Officer Larry Fink to provide 30% of the firm’s revenues by 2022

The report, which draws on interviews and workshops with hundreds of financial and technology experts, observes that the “size of the prize” driven through these as-a-service offerings and other applications of AI is much larger than that of the more narrow applications that drive efficiency through the automation of human effort.

The report predicts that AI will also accelerate the “race to the bottom” for many products, as price becomes highly comparable via aggregation services and third-party services commoditize back office excellence.

“AI’s role in financial services is often seen narrowly as driving efficiency through the automation of human effort, but much greater value can be driven through more innovative and transformative applications,” said Rob Galaski, Deloitte Global Banking & Capital Markets Consulting Leader.

As such, financial institutions are seeking to build new sources of differentiation on the back of AI, such as on-the-fly product customization and free advisory services built into products.

Canadian lender RBC is providing its automotive dealership clients with sophisticated demand-forecasting tools that complement the existing credit products it provides to these firms

IEX, a young New York-based stock exchange, is exploring the use of machine learning in creating new order types that protect trades from execution during unstable, potentially adverse conditions

The net result for customers will be “self-driving finance” – a customer experience where an individual’s or firm’s finances are effectively running themselves, engaging the client only to act as a trusted adviser on decisions of importance.

“A small business won’t go to a bank for a revolving line of credit,” said Bob Contri, Deloitte Global Financial Services Leader. “It will seek out a liquidity solution that anticipates how their need for growth capital will evolve and provides customized products to meet those needs,” he said.

But the expanding presence of AI in finance doesn’t come without tensions and risks.

First, financial institutions will be drawn closer to big tech since cloud computing is central to most AI strategies. But there is a chance that most of the benefits will escape them.

Second, the report warns that AI will raise new challenges for the financial ecosystem, particularly around regulation. The divergent path being taken by regulators around the world towards customer data could create a new form a regulatory arbitrage, project participants said.

Finally, the report points to systemic and security risks from creating a more networked finance system, where a few AI databases contain most clients’ information.

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Your new digital rights across Europe during summer holidays

MD Staff

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This summer, European citizens will enjoy more digital rights than ever before. Following the end of roaming charges across the European Union last year, holidaymakers can now travel with their online TV, film, sports, music or e-book subscriptions at no extra cost. In addition, everyone across Europe can enjoy world-class data protection rules that ensure all Europeans have better control over their personal data.

Andrus Ansip, Vice-President for the Digital Single Market said: “Europeans are already starting to feel the benefits of the Digital Single Market. This summer you will be able to bring your favourite TV programmes and sports matches with you wherever you travel in the EU. By the end of this year, you will also be able to buy festival tickets or rent cars online from all over the EU without being geo-blocked or re-routed.”

Věra Jourová, Commissioner for Justice, Consumers and Gender Equality added: “The digital world offers tremendous opportunities, but also challenges; for example, our personal data is a useful asset for many companies. With the modern data protection rules we have put in place, Europeans have gained control over their data whenever they shop, book their holidays online or just surf the internet.

Mariya Gabriel, Commissioner for the Digital Economy and Society said: “We are improving the daily life of our citizens, be it end of roaming charges or safer online environment. By completing all our digital initiatives we will bring even more positive change to consumers and businesses alike.

Digital rights already in daily use

Since June 2017, people have been able use their mobile phones while travelling in the EU just like they would at home, without paying extra charges. Since the EU abolished roaming charges, more than five times the amount of data has been consumed and almost two and a half times more phone calls have been made in the EU and the European Economic Area.

Since April 2018, consumers can access online content services they have subscribed to in their home country also when travelling across the EU, including among other films, series and sports broadcasts (see examples in factsheet).

Under the new data protection rules which have been in place across the EU since 25 May 2018, Europeans can safely transfer personal data between service providers such as the cloud or email; everyone now has the right to know if their data has been leaked or hacked, or how their personal data is being collected. Furthermore, with the ‘right to be forgotten’, personal data has to be deleted upon request, if there are no legitimate reasons for a company to keep it.

Finally, with the net neutrality rules applying since spring 2016, every European has access to open internet, guaranteeing their freedom without discrimination when choosing content, applications, services and information of their choice.

Coming soon

With some digital rights already in place, there is more to come in the upcoming months. From September, Europeans will have increasingly the right to use their national electronic identification (eID) across the whole EU to access public services.

As of December, everyone will benefit from the free flow of non-personal data, as they will have access to better and more competitive data storage and processing services in the EU, thus complementing the free movement of people, goods, services and capital. Entrepreneurs meanwhile will have the right to decide where in the EU they store and process all types of data.

As of 3 December, Europeans will be able to shop online without unjustified discrimination wherever they are in the EU. They will not have to worry about a website blocking or re-routing them just because they – or their credit card – come from a different country.

As of next year, citizens will be able to compare parcel delivery costs more easily and benefit from more affordable prices for cross-border parcel delivery.

Agreed rules on value added tax for e-commerce will allow entrepreneurs to take care of their cross-border VAT needs in one online portal and in their own language.

With the recently agreed European Electronic Communications Code, Europeans will have the right to switch internet services and telecoms providers in a simpler way. They will also have the right to receive public alerts on mobile phones in case of an emergency. The new rules will also guarantee a better and more affordable connectivity across the EU.

With the updated rules for audiovisual media, Europeans will have the right to a safe online environment that protects them from incitement to violence, hatred, terrorism, child pornography, racism and xenophobia.

Background

The Digital Single Market strategy was proposed by the Commission in May 2015 to make the EU’s single market fit for the digital age – tearing down regulatory walls and moving from 28 national markets to a single one. This has the potential to contribute €415 billion per year to our economy and create hundreds of thousands of new jobs.

Three years later, the strategy is well on its way: 17 legislative proposals have been agreed on, while 12 proposals are still on the table. There is a strong need to complete our regulatory framework for creating the Digital Single Market. Thanks to this the value of Europe’s data economy has the potential to top €700 billion by 2020, representing 4% of the EU’s economy.

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