Surveillance Capitalism in the Internet of Loos: Can the General Data Protection Regulation Counter Digital Dispossession?

Yay I’ve finished the 6th chapter of my book on Internet of Things and the Law (Routledge, forthcoming)!

The IoT constitutes an unprecedented challenge to privacy for a twofold reason.[1] First, it is progressively eroding the area of what can be regarded as private. Traditionally, the home and the body were the most sacred of private spaces.[2] This is being overcome by a world in which smart home and IoT-health are becoming commonplace. The IoT is normalising the idea that ubiquitous cameras, microphones and sensors track citizens’[3] behaviour and transform it into structured data flows that are sent back to our Things’ manufacturers. This is perhaps best illustrated by Amazon’s Echo Spot and Echo Look – respectively an alarm clock and a style assistant – that are equipped with cameras and are designed to be used in the bedroom and even in the bathroom. This has practical consequences. Indeed, to bring an action for breach of the right to privacy,[4] as stated in Campbell v MGN, ‘the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.[5] To assess whether, at the time of the alleged breach, there was a reasonable expectation of privacy, the question to be asked as phrased in Murray v Big Pictures[6] is: what would a reasonable person of ordinary sensibilities feel if placed in the same situation as the subject of disclosure and faced with the same publicity? Among the factors to take account of, the place where the intrusion happens and the absence of consent play an important role.[7] If one buys a Thing whose ‘smartness’ is intrinsically connected to its sensing and tracking capabilities, and this Thing is designed to be deployed in the bedroom or even in the bathroom, does one retain a reasonable expectation of privacy? The situation is worsened by the principles that, set out in Spycatcher,[8] limit the duty of confidentiality. One of them is that there is no such duty when the information is trivial.[9] IoT companies may argue that the information about when one wakes up or when one goes to the loo is trivial. However, the IoT allows the combination of data from multiple sources in such a way that information that might seem trivial if considered in isolation, becomes personal and valuable once combined with other data that leads to valuable inferences about an IoT user’s preferences and vulnerabilities.[10] Finally, IoT companies may claim that information about our e-commerce habits is not really private, but as seen in Arkansas v Bates,[11] Amazon’s users are concerned about the company revealing sensitive purchases as these are considered private information whose disclosure could potentially harm their reputation or career. Overall, this erosion of the private sphere is alarming because it does not allow for that ‘intellectual privacy’[12] that is necessary to be ourselves and express ourselves freely and creatively. In this sense, the IoT can be regarded as an attack on the self, that self that is – according to Seneca’s famous ‘recede in te ipse’ (‘self-retreat’)[13] – the safe space where virtue, wisdom and happiness are given the chance to grow.[14]

The IoT challenges the right to privacy also for a second reason, which will be the more modest focus of this chapter. Since the IoT ‘could undermine such core values as privacy,’[15] this chapter will critically assess whether the GDPR, the most advanced European privacy law so far,[16] can tackle the data protection issues in the IoT. The core features of the IoT render GDPR compliance difficult, if at all possible. An illustration of this is the conflict between the principle of purpose limitation and IoT’s repurposing. As seen in Chapter 2, ‘repurposing’[17] is a critical characteristic of IoT systems, dependent on their (inter)connectivity and system-of-systems dimension.[18] ‘Repurposing’ can be understood as the phenomenon whereby an IoT system ends up being used for purposes other than those originally foreseen in two scenarios:

  • The communication within the relevant subsystem and among subsystems can lead the system to perform actions and produce information which the single Thing was incapable of or that could not be foreseen by its manufacturers; and
  • Under certain conditions (e.g. an emergency) the system may reconfigure either in an automated fashion or a user-initiated one.

IoT’s repurposing runs counter the purpose limitation principle, whereby personal data has to be ‘collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes.’[19]

This chapter will center on the tensions between the GDPR and the IoT. After an introduction to the GDPR, which will be framed as a ‘data control’ law (VI.2), the chapter will present the main data protection issues in the IoT (VI.3). It will then focus on one of them that is usually overlooked: ‘digital dispossession.’[20] This refers to IoT companies’ (ab)use of intellectual property rights (especially trade secrets) to appropriate citizens’ data and prevent them from exercising their data subject rights, including the right of access.[21] This is part of wider phenomenon whereby the new data economy relies on the commercialisation of data.[22] This is leading to the privatisation of ownership of both the IoT’s infrastructure and IoT data.[23] Digital dispossession will be analysed as a tenet of the theory of surveillance capitalism[24] (VI.4). To understand what practically happens to IoT users’ data, the chapter will move on to analyse Alexa’s data practices by means of a subject access request, engagement with customer support, and text analysis of its privacy policy (VI.5). Finally, it will consider whether the GDPR is fit for the IoT. To carry out this fitness check, the chapter will explore whether the rights to access, to portability, to be informed, and not to be subject to solely automated decisions can be successfully invoked to counter IoT companies’ digital dispossession practices, or whether, conversely trade secrets may give these companies a weapon to nullify the GDPR rights (VI.6).


[1] The relationship between IoT and privacy can be and has been analysed from manifold perspectives. See e.g. Lilian Edwards, ‘Privacy, Security and Data Protection in Smart Cities: A Critical EU Law Perspective’ (2016) 2 EDPL 28; Guido Noto La Diega, ‘Clouds of Things: Data Protection and Consumer Law at the Intersection of Cloud Computing and the Internet of Things in the United Kingdom’ (2016) 9(1) Journal of Law & Economic Regulation 69; Sandra Wachter, ‘Normative Challenges of Identification in the Internet of Things: Privacy, Profiling, Discrimination, and the GDPR’ (2018) 34 Computer Law & Security Review 436; Lachlan Urquhart, ‘White Noise from the White Goods? Privacy by Design for Ambient Domestic Computing’ in Lilian Edwards, Burkhard Schafer and Edina Harbinja (eds), Future Law (EUP 2019).

[2] On how the implementation of human-implantable tracking systems creates a serious risk to privacy see Ian Kerr, ‘The Internet of Things? Reflection on the Future Regulation of Human-Implantable Radio Frequency Identification’ in Ian Kerr, Valerie Steeves and Carole Lucock (eds), Lessons from the Identity Trail. Anonymity, Privacy and Identity in a Networked Society (OUP 2009) 335 and esp. 347 ff.  On the traditional concept of privacy, see also Judee K Burgoon and others, ‘Maintaining and Restoring Privacy through Communication in Different Types of Relationships’ (1989) 6 Journal of Social and Personal Relationships 131; Rosamund Scott, Rights, Duties and the Body: Law and Ethics of the Maternal-Fetal Conflict. (Bloomsbury Publishing 2002).

[3] This chapter refers to citizens and users rather than consumers because, unlike the consumer laws analysed in the previous chapters, data protection law does not apply only to consumers, but to all natural people.

[4] Whilst there is no distinct cause of action for breach of privacy in the UK, there is a tort of misuse of private information that is commonly used in privacy cases. It evolved out of the common law of breach of confidence, but it is now regarded as a stand-alone action. See PJS v News Group Newspapers Ltd [2016] UKSC 26; Wainwright v Home Office [2003] UKHL 53; Google Inc v Vidal-Hall and others [2015] EWCA Civ 311. Unlike the breach of confidence, the misuse of private information does not require a pre-existing relationship of confidence between the parties, as was the case in Campbell (Naomi) v Mirror Group Newspapers [2004] 2 AC 457 (HL).

[5] Campbell (n XX) [21]. The unlawful use of information in respect of which the claimant has a reasonable expectation of privacy is the so-called confidentiality component of the misuse of private information. The other component is ‘intrusion’; indeed, claimants need to prove unwanted intrusion in their private lives or harassment. For this framing of the misuse of private information see PJS (n XX).

[6] Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446.

[7] Murray (n XX) [35]-[36].

[8] Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109.

[9] There are contrasting authorities on the matter. On the one hand, in Ambrosiadou v Coward [2011] EWHC Civ 409 [30], the court held that not all information that relates to a person’s private life is protected, ‘the information may be of slight significance, generally expressed, or anodyne in nature’ (similarly, see R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414). Conversely, in McKennitt v Ash (QBD) [2005] EWHC 3003) it was observed that the mere fact that information was of a relatively trivial or anodyne nature would not necessarily mean the non-engagement of ECHR, art 8.

[10] See e.g. Paramasiven Appavoo and others, ‘Efficient and Privacy-Preserving Access to Sensor Data for Internet of Things (IoT) Based Services’, 2016 8th International Conference on Communication Systems and Networks (COMSNETS) (2016).

[11] State of Arkansas v James A Bates, Memorandum of Law in support of Amazon’s Motion to Quash search warrant, Case No CR- 2016-370-2, (Benton County Court: 2017).

[12] Neil Richards, Intellectual Privacy: Rethinking Civil Liberties in the Digital Age (Oxford University Press 2015).

[13] Seneca, Epistulae Morales Ad Lucilium, vol I, p VII.8.

[14] For this interpretation of Seneca see Christine Richardson-Hay, First Lessons: Book 1 of Seneca’s Epistulae Morales– a Commentary (Peter Lang 2006) 264.

[15] William H Dutton, ‘Putting Things to Work: Social and Policy Challenges for the Internet of Things’ (2014) 16 info 1.

[16] This is not to suggest that privacy and data protection are synonyms. There is private information that may be breached despite the compliance with data protection laws and, equally, personal data includes also information that is not related to one’s private life. See e.g. Michèle Finck, European Parliament and Directorate-General for Parliamentary Research Services, Blockchain and the General Data Protection Regulation: Can Distributed Ledgers Be Squared with European Data Protection Law? (2019) 15 <http://publications.europa.eu/publication/manifestation_identifier/PUB_QA0219516ENN&gt; accessed 11 June 2020. Nonetheless, it cannot be denied that a major policy goal of the GDPR is to increase the protection of privacy (see e.g. GDPR, recital 4).

[17] Noto La Diega, ‘Clouds of Things’ (n 2).

[18] On the repurposing of big data drawn from the IoT in smart cities, see Edwards (n 2).

[19] GDPR, art 5(1)(b).

[20] Another way of looking at it is ‘data appropriation’ as we called it in Guido Noto La Diega and Cristiana Sappa, ‘The Internet of Things at the Intersection of Data Protection and Trade Secrets. Non-Conventional Paths to Counter Data Appropriation and Empower Consumers’ 2020 REDC. This chapter draws on that paper.

[21] For a reflection on whether, and to what extent, the concept of ownership can be applied to personal data in the context of the IoT see Václav Janeček, ‘Ownership of Personal Data in the Internet of Things’ [2018] Computer Law & Security Review 1039.

[22] Josef Drexl, ‘Designing Competitive Markets for Industrial Data. Between Propertisation and Access’ (2017) 8 JIPITEC 257.

[23] Edwards (n 2).

[24] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (First edition, PublicAffairs 2019)

The European approach to recognising, downgrading, and erasing same-sex marriages celebrated abroad

This chapter analyses how European countries that provide some protection for same-sex couples (e.g. civil partnerships, but not marriage) deal with same-sex marriages celebrated abroad. In this respect, there are three models: recognition, downgrading, and erasure.

Recognition means that these marriages are recognised as marriages, either for all purposes, or for some of them, e.g. for the exercise of EU freedoms. Romania is the case study, because Coman – the CJEU case that provides a basis for the recognition model – concerned a Romanian case and therefore it is important to see how Member States implement the CJEU’s ruling.

Downgrading’ is the model whereby foreign marriages are treated as national civil partnerships. This is based on Orlandi, and therefore Italy is the chosen case study.

Hungary, finally, represents the ‘erasure’ model whereby same-sex marriages celebrated abroad are not even recognised as civil partnerships.

These models are criticised from an EU law, European human rights law, and private international law perspective.

This is the abstract of a chapter of the book Same-Sex Relationships, Law and Social Change (Routledge 2020) edited by Dr Frances Hamilton and me. The book is available for purchase on Routledge’s website.

Please cite as Guido Noto La Diega, ‘The European approach to recognising, downgrading, and erasing same-sex marriages celebrated abroad’ in Frances Hamilton and Guido Noto La Diega (eds), Same-Sex Relationships, Law and Social Change (Routledge 2020) ch 2

Book: Same-Sex Relationships, Law and Social Change

In January 2020, Routledge published a book on Same-Sex Relationships, Law and Social Change edited by Dr Frances Hamilton and me.

This edited collection provides a forum for rigorous analysis of the necessity for both legal and social change with regard to regulation of same-sex relationships and rainbow families, the status of civil partnership as a concept and the lived reality of equality for LGBTQ+ persons.

Twenty-eight jurisdictions worldwide have now legalised same-sex marriage and many others some level of civil partnership. In contrast other jurisdictions refuse to recognise or even criminalise same-sex relationships. At a Council of Europe level, there is no requirement for contracting states to legalise same-sex marriage (Schalk and Kopf v Austria (Application no. 30141/04)). The Court of Justice of the European Union now requires contracting states to recognise same-sex marriages for the purpose of free movement and residency rights (Case C-673/16 Coman). However, unlike the US Supreme Court, it does not require EU Member States to legalise same-sex marriage. Law and Sociology scholars from five key jurisdictions (England and Wales, Italy, Australia, Canada, and the Republic of Ireland) examine the role of the Council of Europe, European Union and further international regimes. A balanced approach between the competing views of critically analytical rights-based theorists and queer and feminist theorists interrogates the current international consensus in this fast moving area. The incrementalist theory whilst offering a methodology for future advances continues to be critiqued. All contributions from differing perspectives expose that even for those jurisdictions who have legalised same-sex marriage, still further and continuous work needs to be done.

The book is of interest to students and scholars in the field of human rights, family and marriage law and gender studies.

My chapter (‘The European approach to recognising, downgrading, and erasing same-sex marriages celebrated abroad‘) can be downloaded in the Research Projects section of this website.

The book, available also as an e-book, can be purchased on Routledge’s website.

The Internet of Personalised Things. IoT-Powered Consumer Manipulation as an Unfair Commercial Practice

Personalisation is one of the key befits of the Internet of Things (IoT). IoT traders can combine data from multiple sources and access consumers’ most private spaces. At the same time, these traders retain control over their smart devices (‘Things’) throughout their lifecycles.

Thanks to this combination of deep knowledge of the consumer and control over the Thing, IoT traders can personalise products, services, prices, and even the terms of service that regulation the business-to-consumer relationship. The problem is that personalisation can lead to consumer manipulation and even discrimination – such detrimental effects can be referred to as the ‘Internet of Personalised Things’.

Situational data and information about consumers’ biases and vulnerabilities allow IoT traders to influence consumers’ decision-making in surreptitious ways. This can go from instilling the desire to purchase useless or even dangerous Things, to the exclusion of BAME people from certain job ads, through to electoral manipulation.

My paper will critically assess whether unfair trading laws – and in particular the Unfair Commercial Practices Directive as amended in 2020 – are fit for purpose and can provide a successful strategy to re-empower consumers, thus re-building trust in the IoT.

It is suggested that, despite some shortcomings, this regime can be invoked by consumer to counter IoT-powered manipulation, especially as the Directive provides special protections for vulnerable consumers and against traders’ undue influence impairing consumer freedom of choice.

The Directive does have some limitations but this should not come as a surprise. Being a neoliberal instrument aimed at pursuing a perfectly competitive single market, it cannot provide an entirely satisfactory response to an issue that capitalism itself created, namely the problem of manipulated needs as discovered by Marx.

I will present this research at the 111th Annual Conference of the Society of Legal Scholars in the Cyberlaw session (you can still register!).

Emergency Remote Teaching: a study of copyright and data protection policies of popular online services (Part II)

The first post of this two-part series on Emergency Remote Teaching (ERT) discussed the copyright implications of the use of different online services in the context of ERT. The second part explores the data protection issues. Our analysis evaluates compliance of platforms with the General Data Protection Regulation (GDPR), in order to assess how the shift from face-to-face to a digital teaching dimension affects teachers’ and students’ privacy in universities.

ERT requires the collection and processing of different types of personal data – including in some cases sensitive data – from both teachers and students. When based in the EU or offering services to subjects in the EU, ERT service providers must adhere to the rules of the GDPR. The latter provides a framework for the protection of individuals (“data subjects”) with regard to the processing of their personal data, and for the free movement of such data. It empowers data subjects to control information relating to them (Arts. 12-22 GDPR) and clearly articulates the standards of accountability for actors involved in the processing.

The full text of the post is available on the Kluwer Copyright Blog.

This research was carried out with Dr Rossana Ducato (then UCLouvain, now Aberdeen), Dr Giulia Priora (Sant’Anna), Dr Chiara Angiolini (Unitn), Dr Alexandra Giannopoulou (IViR), Dr Bernd Justin Jütte (Nottingham), Léo Pascault (Sciences Po), and Giulia Schneider (Sant’Anna).

I will present it on Friday 3rd July at the at the Strathclyde Centre for Internet Law & Policy webinar series (info and tickets here).

Scents and trade marks – The EU reform of olfactory marks and advances in odour recognition techniques

In the UK, whereas in theory olfactory trade marks can be registered, there have not been successful applications since the decision of the Court of Justice of the European Union (CJEU) in Ralf Sieckmann v Deutsches Patent- und MarkenamtThis contribution suggests that scents may be more easily registered in the near future as a consequence of the EU reform of trade marks and of some technological innovations.

Scents are signs because they can convey information (Phillips Electronics NV v Remington Consumer Products Ltd (No. 1) [1998] RPC 283, 298). After all, Shakespeare taught us that names and words are main carriers of meaning, since ‘(a) rose by any other name would smell as sweet.’ (Romeo and Juliet, II, II) If a scent is not an intrinsic characteristic of the product and is not commonly used (e.g. floral fragrances in fabric softeners), it can be distinctive, since smell ‘is probably the most reliable memory that humans possess’ (Eden SARL v OHIM [2005] ECR II-4705 [25]). Overall, the main hurdle is how to represent them graphically. In order for the representation to be adequate, Sieckmanndictated seven criteria, i.e. clear, precise, self-contained, easily accessible, intelligible, durable and objective. However, the Court did not specify how to meet these criteria. In Sieckmann, it was held that the chemical formula, the description, and a sample, or their combination, did not provide an adequate representation.

Sieckmann was followed by Eden SARL, which again clarified what does not meet the requirements for registration of a scent (the image of a strawberry described as ‘smell of ripe strawberries’), without providing any guidance as to how companies may be able to register scents as trade marks.

After this, it was commented that ‘the EU system’s graphic-representation requirement makes it virtually impossible in practice, albeit not in theory, to gain registration of a scent mark.’ (Bartkowski 2006). The very narrow interpretation of ‘graphic representation’ provided by the CJEU was not the only choice available. For instance, in Australia even though there is a graphic representation requirement (Trade Marks Act 1995, s 40), olfactory marks have been successfully registered (IP Australia trade mark No 1241420 represented as the Eucalyptus Radiata scent for golf tees). Another example is provided by the (then) Office for Harmonisation in the Internal Market (OHIM)’s case law ante Sieckmann, that recognised that a description of the scent could meet the graphic representation requirement if it provided ‘clear enough information to those reading (it) to walk away with an immediate and unambiguous idea of what the mark is when used in connection with (the relevant good or service)’ (Vennootschap onder Firma Senta Aromatic Marketing’s Application [1999] ETMR 429 [13]).  

Now, UKIPO’s Trade Marks Manual does not rule out the registrability of olfactory marks. Indeed, it refers to Sieckmann to explain how not to represent olfactory marks graphically, but it seems to imply that they can still be registered, since it goes on to explain how to meet the third requirement for registration, i.e. distinctiveness. In particular, a scent ‘may be distinctive as a trade mark if it is not an inherent or natural characteristic of the goods/services but is added by the applicant to identify their goods and is recognised by the public as indicating trade origin.’ Therefore, whilst a floral fragrance is unlikely to be registrable for fabric softeners and the smell of coffee for a type of coffee, one may argue that the distinctiveness requirement may be met in the event of a scent of a particular type of coffee used consistently applied to all fabric softeners of a single undertaking and accompanied by an advertising campaign clearly referring to this unusual smell. Such a registration would be more likely to be successful in the event of acquired distinctiveness through use (which is what Hasbro is counting on in its Play-Doh application; Galbo 2017).

New possibilities for olfactory branding may be opened by legal and technical innovations. The first one is the EU reform of trade marks. Indeed, the yet-to-be-transposed Trade Marks Directive introduces a new definition of trade marks where the graphic representation of the mark is no longer required. Under the new regime, those who want to register a smell will only need to represent it ‘in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor’ (art 3(b)). Some difficulties may remain because the Trade Marks Directive incorporated the so-called Sieckmann criteria, that the (then graphical) representation must be ‘clear, precise, self-contained, easily accessible, intelligible, durable and objective’ (recital 13). However, even not going as far as arguing that ‘the amendments will abolish the Sieckmann judgement’ (Sahin 2016, 513), it is not excluded that the seven criteria may be interpreted differently in the future, for example as meaning that a combination of description, chemical formula and sample may meet the new requirements for registration. Indeed, with the new definition of trade marks there is a shift from the ‘how’ to the ‘who’. It is immaterial how the trade mark is represented (whether graphically or otherwise), as long as the competent authorities and the public can determine the subject matter of the protection. Arguably, the said combination of description, chemical formula, and sample may suffice from the authorities’ perspective. When it comes to the public, it is likely that this requirement will be absorbed by the distinctiveness. An unusual scent used consistently on a range of products or services of a single undertaking and accompanied by heavy advertising would easily put the public in the position to determine the subject matter of the protection, especially if distinctiveness is acquired through use; thus, the requirement could be easily made out. One could foresee a return to the case law ante Sieckmann that valued the customers’ viewpoint and stated, for instance, that an olfactory mark described as freshly cut grass will be recognised immediately by anyone, reminding ‘of spring, or summer, manicured lawns or playing fields, or other such pleasant experiences’ (Senta Aromatic [14]). The customers’ scent-related power of imagination cannot be underestimated. A number of scents can evoke clear memories and feelings.

Another hurdle may be the extension of some absolute grounds for exclusion from registration that used to refer only to shapes and now include any ‘other characteristic’ (Trade Marks Directive, art 4(1)(e). However, the extension should not have a substantial impact on olfactory marks. The scents depending on the nature of the good were already non-registrable in the UKIPO’s practice (UKIPO 2016, para 3.2). For those adding substantial value to the good, it is likely that companies will keep preferring the route of trade secrets (Hammersley 1998) and patents (e.g. USPTO patent No 9006168). Lastly, it is hard to imagine many scenarios where scents could be necessary to achieve a technical result.

Therefore, it would seem that the EU trade marks reform may leave some scope for scents and other non-conventional marks. The same considerations apply to the European Union Trade Mark (EUTM), given that EUTM Regulation provides the same definition and criteria for representation (art 4 and recital 10; see also the EUTM Implementing Regulation, art 3), as well as grounds for exclusion from registration (EUTM Regulation, art 7(1)(e)(iii)) as the Trade Marks Directive. The EUTM Regulation is relevant for all UK businesses wanting to apply for a EUTM, provided that they have a place of business, a real and effective establishment, or a domicile in the EU, or they have appointed a representative for all proceedings before the EU Intellectual Property Office (EUIPO).

The EUTM Implementing Regulation lists a number of marks and ways to represent them, including non-conventional marks such as holograms and sounds (art 3(3)(a)-(j)). The representation of scents and other marks not comprised in the list, ‘shall comply with the standards set out in paragraph 1 and may be accompanied by a description’ (art 3(4)). Therefore, what matters is that the competent authorities and the public can determine the subject matter of the protection. An obstacle to the registration of scents as EUTMs, however, could follow from the precision that the ‘filing of a sample or a specimen shall not constitute a proper representation of a trade mark’ (art 3(9)).

Alongside the said legal innovations, technological progress could make the registration of scents easier. Two methods that could be used are gas chromatography and smelling screens (Hernandez-Marti Perez 2014).

A scent may well be graphically represented through gas chromatography, the ‘premier technique for separation and analysis of volatile compounds’ (McNair and Miller 2011). However, the WIPO takes the view that this technique be inexact and uncertain, hence, it would ‘not fulfill the demand for unambiguous graphic representation.’ (n.d., 9). However, it would seem that analytical chemistry research is advancing significantly and that, also thanks to artificial intelligence (particularly neural networks), scents can be identified with a high accuracy ‘close to 100%, without any false positives or false negatives.’ (Ugena et al. 2016, 7). Therefore, gas chromatography may be now successfully used to represent olfactory marks.

Scent recognition research has followed many paths. One of them is the smelling screen. This is a ‘new olfactory display system that can generate an odor distribution on a two-dimensional display screen.’ (Matsukura 2013, 606). Smelling screens may enable olfactory marks to be sampled and, as each individual will be able to repeat this process, the ‘principle of easy accessibility will be accomplished.’ (Hernandez-Marti Perez 2014, 668). Such a solution may provide certainty as to the registration of scents and other non-conventional marks, even though much depends on the developments and commercialisation of the relevant technology.

Given the said shift from the ‘how’ to the ‘who’ in assessing the requirement of representation, the commercial success of the smelling screen and of gas chromatography shall be one of the factors to take into account while assessing if the public can determine the clear and precise subject matter of the protection. The importance of this factor is confirmed by the EUTM Implementing Regulation, which provides that the ‘trade mark shall be represented in any appropriate form using generally available technology’ (art 3(1)). This leads us to the Internet of Things (IoT), which has become a key commercial reality, with over 20 billion smart devices in 2017, set to become nearly 80 billion by 2025 (Statista 2017). With the uptake of the IoT, one can foresee that odour recognition techniques will improve visibly. Indeed, the IoT is about devices equipped with connectivity and sensing and actuating capabilities (Noto La Diega and Walden 2016). Hence, it is likely that consumers will expect increasingly accurate and reliable sensors, including odour recognition ones. The ubiquitous availability of accurate electronic noses will make the (formerly) Sieckmann criteria more likely to be made out. When every object in everyone’s home can clearly and accurately tell its users what a product smells like, arguably the public will be able to ‘determine the clear and precise subject matter of the protection afforded to its proprietor’ (Trade Marks Directive, art 3(b)).’

Overall, legal and technical innovations promise a new age for olfactory marks and other non-conventional marks. Regardless of Brexit, there are good reasons for the UK to implement the Trade Marks Directive. Not only to prevent a state liability claim, but because a divergence could constitute a barrier for UK businesses to market their products and services in EU. At the same time, EU businesses’ interest in targeting the UK as a market could decrease if they had to develop ad-hoc compliance practices. Once the Member States remove the requirement of the graphic representation, much will depend on how accurate and widespread the odour recognition technologies will be. It would seem that, thanks to artificial intelligence and the Internet of Things, highly reliable solutions will soon be commonly available. The removal of the graphic representation, with its shift from the ‘how’ of the representation to the ‘who’, puts the public back at the centre of the system. The case law underlining the evocative force of scents and the importance of the customers’ imagination may play an increasingly significant role (Senta AromaticSony Ericsson Mobile Communications AB).

The envisaged increased ease in the registration of scents and other non-conventional marks is likely to produce mixed reactions. On the one hand, this will be welcomed positively by businesses willing to innovate their branding strategies. On the other hand, those who fear the monopolisation of ideas underlying the commodification of scents could legitimately be worried.

A longer version of this article was published here.

PLEASE CITE AS Guido Noto La Diega, ‘Scents and trade marks – The EU reform of olfactory marks and advances in odour recognition techniques’ (IPKat, 15 January 2018) <ipkitten.blogspot.co.uk/2018/01/scents-and-trade-marks-eu-reform-of.html>

Against the Dehumanisation of Decision-Making. Algorithmic Decisions at the Crossroads of IP, Data Protection, and Freedom of Information

You can find here the full text of my latest work on algorithms and automated decision making with a focus on intellectual property, the EU General Data Protection Regulation (GDPR), and freedom of information.

Nowadays algorithms can decide if one can get a loan, is allowed to cross a border, or must go to prison. Artificial intelligence techniques (natural language processing and machine learning in the first place) enable private and public decision-makers to analyse big data in order to build profiles, which are used to make decisions in an automated way.

This work presents ten arguments against algorithmic decision-making. These revolve around the concepts of ubiquitous discretionary interpretation, holistic intuition, algorithmic bias, the three black boxes, psychology of conformity, power of sanctions, civilising force of hypocrisy, pluralism, empathy, and technocracy.

The lack of transparency of the algorithmic decision-making process does not stem merely from the characteristics of the relevant techniques used, which can make it impossible to access the rationale of the decision. It depends also on the abuse of and overlap between intellectual property rights (the “legal black box”). In the US, nearly half a million patented inventions concern algorithms; more than 67% of the algorithm-related patents were issued over the last ten years and the trend is increasing.

To counter the increased monopolisation of algorithms by means of intellectual property rights (with trade secrets leading the way), this paper presents three legal routes that enable citizens to ‘open’ the algorithms.

First, copyright and patent exceptions, as well as trade secrets are discussed.

Second, the GDPR is critically assessed. In principle, data controllers are not allowed to use algorithms to take decisions that have legal effects on the data subject’s life or similarly significantly affect them. However, when they are allowed to do so, the data subject still has the right to obtain human intervention, to express their point of view, as well as to contest the decision. Additionally, the data controller shall provide meaningful information about the logic involved in the algorithmic decision.

Third, this paper critically analyses the first known case of a court using the access right under the freedom of information regime to grant an injunction to release the source code of the computer program that implements an algorithm.

Only an integrated approach – which takes into account intellectual property, data protection, and freedom of information – may provide the citizen affected by an algorithmic decision of an effective remedy as required by the Charter of Fundamental Rights of the EU and the European Convention on Human Rights.

Recommended citation: Guido Noto La Diega, Against the Dehumanisation of Decision-Making – Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information, 9 (2018) JIPITEC 3 para 1.

Can the law fix the problems of fashion? An empirical study on social norms and power imbalance in the fashion industry

The fashion industry is affected by an imbalance of power that goes beyond the outsourcing of part of the manufacture to developing countries. Said imbalance characterizes the whole supply chain and hinders freedom of expression, freedom to conduct business and, hence, creativity and innovation. In order to understand fashion, IP lawyers and lawmakers need to take into account that the law is not the main device for regulating the relevant relationships. Indeed, fashion is a closed community, a family where complaining is rather frowned upon and where contracts do not reflect the actual relationships between the parties.

In order to rebalance power, this article explores the possibility of treating good faith and inequality of bargaining power as unifying principles of contract law. However, in light of the evidence collected during a number of in-depth interviews with fashion stakeholders, it seems clear that social norms are the main source of regulation of relationships and, therefore, intervening at the level of the contracts may not be helpful. Competition law, in turn, may be of more help in rebalancing power; however, cases such as Coty v Parfümerie Akzente do not augur well. Moreover, competition law is useful when the relationship is over, but it is in all the stakeholders’ interest to keep the relationship alive while fixing its imbalance. This study confirms recent findings that social norms do not just have a positive impact on fields with low IP-equilibrium and sheds light on the broader consequences of the reliance on social norms and on its relationship to power imbalance.

This work makes a twofold recommendation. First, IP lawyers should engage more with the unfamiliar field of social norms. Second, advocates of a reform of IP aimed at transforming the industry into an IP-intensive one should be mindful that the effort may prove useless, in light of the role of social norms, especially if power is not distributed.

This is the abstract of Guido Noto La Diega, ‘Can the law fix the problems of fashion? An empirical study on social norms and power imbalance in the fashion industry’ (2018) Journal of Intellectual Property Law & Practice, jpy097, https://doi.org/10.1093/jiplp/jpy097

Please find the full text here

Uber Law and Awareness by Design. An Empirical Study on Online Platforms and Dehumanised Negotiations

I have published an article that sheds light on the main consumer law aspects of the sharing economy through an empirical analysis of online platforms. Given the recent European consultation with the purpose of understanding (whether, or, more likely) how to regulate platforms, it is critical that consumer law considerations will be part of future regulations. For instance, it is hardly acceptable that the consumer acts in the belief that the contractual party (thus the potentially liable party) is the platform, but in reality the former disclaims any responsibility and claims to be a mere intermediary, which only seldom actually is.

After a critical analysis of the Italian legislative proposal on platforms and collaborative economy, the articles moves on to illustrate the use case of Uber, the $60 billion ride-hailing platform, which is acting at the margin of existing laws, thus giving rise to protests and debate around the world. After an assessment of the Italian ruling preventing Uber to provide the UberPop service in Italy, the use case is the perfect tool to show the main reasons for concern of consumers is the lack of awareness of their rights and obligations. This articles deals with two factors of the said lack: the contractual quagmire and the corporate labyrinth.

In the conclusions, an ambitious, albeit feasible, practical proposal is presented. It is suggested the development of a mobile app that helps the consumers to assess the legal quality of the contracts they are entering in order to access the services offered through the platform. At the same time, this app, called ‘Awareness by Design’, should contribute to raise awareness in consumers, thus creating critical mass and making platforms understand that trust, transparency, and accountability are competitive advantages.

Please cite as Guido  Noto La Diega, ‘Uber Law and Awareness by Design. An Empirical Study on Online Platforms and Dehumanised Negotiations’ (2016) 2 Revue européenne de droit de la consommation/ European Journal of Consumer Law 383

The full text is available at https://ssrn.com/abstract=3277557

Some considerations on intelligent online behavioural advertising

The Cambridge Analytica scandal in March 2018 was a useful reminder of how personal data is used to target users and of how such targeting has profound societal consequences.

Online behavioural advertising refers to advertisements, which are tailored to the tastes and habits of the user who actually views them. It is an intricate phenomenon for a number of reasons, including a twofold regulatory interweave. Firstly, between top-down and self-regulation. Secondly, between the personal data perspective and the competition one.

My paper Some considerations on intelligent online behavioural advertising is now live and open access. It aims to get the knots out in the belief that rising awareness about the issues in online behavioural advertising is pivotal to a fair online environment. The paper is particularly timely in light of new regulations (draft ePrivacy Regulation and General Data Protection Regulation), worrying industry moves (e.g. the Facebook / WhatsApp data synchronisation), and the advent of new technologies.

In particular, it will be shown that artificial intelligence presents not only threats to consumers, but also opportunities for bespoke compliance mechanisms. As an appendix, the “Cooperative Charter for an Integrated Approach to Online Behavioural Advertising” is presented in order to facilitate the dialogue between the stakeholders and ensure a balanced regulation of online behavioural advertising.

Please cite as Guido Noto La Diega, ‘Some considerations on intelligent online behavioural advertising’ (2017) 66-67 Revue du droit des technologies de l’information 53-90

Full text is here

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