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Emerging Issues in the Digital Economy - Coggle Diagram

- - - - Protection Dimension
        
        Meaning: protection means that children have rights to be protected from harms.
        
        Relevant rights that can go against protection
        
        Right to privacy
        
        For example, children are protected from excessive data collection,
        
        However, the interpretation of rights will depend on the evolving capacities of a child. Right to privacy can mean something different for a child then for an adolescent.
        
        Right to wellbeing and development
      - Participation dimension
        
        Meaning: Participation refers to all the rights that provide children with the means to play an active role in society (by giving them a voice in decision making, allowing them to communicate with friends and family online safely)
        
        Relevant rights that can go against Participation: Right to play, Right to freedom of expression, Right to freedom of assembly, Right to access a broad variety of good quality media.
      - Provision Dimension
        
        Meaning: Provision refers to resources, services that are needed for children development.
        
        Relevant rights that can go against Provision: Right to information, child friendly information, Right to education/privacy literacy (ability to acquire digital skills
  - - - They have to ensure that there is a regulatory framework in place that protects children rights from other actors (eg, companies) comply. They have to take positive action to ensure children rights in practice
      - UNICEF has clarified that States need to take a child rights approach when they regulate and develop policies that have an impact on children. This means that all the principles and rights of CRC should be integrated in the regulatory framework
    - - Responsible for the upbringing of their children (Art. 18 CRC)
      - Article 5 CRC: Children from different ages may require different parenting decision, different measures for protecting them, different opportunities of participation
    - - Reluctance to impose binding obligations on businesses.These responsibilities are usually based on social expectations
  - - - EU legislator in the GDPR recognizes that children require specific protection. Children are less aware of the risks and the potential consequences of the processing of their personal data on their rights and merit specific protection (Recital 38 GDPR)
    - - Lawful Basis - Consent (Article 8 GDPR sets specific requirements for the consent of the processing of children’s data.)
        
        Parental Consent Requirement
        
        There is a parental consent requirement for children under age 16 in situations where information society services are offered directly to children and where consent is a lawful ground on the basis for which the data is processed.
        
        However, The GDPR does allow States to lower the age of 16 years, and can lower it down to 13 years.
        
        All the thresholds have been selected in different countries (There are countries that chose 13, 14, 15 and others 16)
        
        Verified Parental Consent (Art. 8(2) GDPR)
        
        This article also requires that parental consent be verified. The data controller will have to make reasonable efforts to verify in cases where parental consent is given that the consent was given by parent.
        
        The controller has to determine on a case by case basis what is “reasonable efforts”. It needs to be a risk based decision. For instance, in low risk cases, a response to an email may be sufficient.
      - Lawful basis: Legitimate interests
        
        If the data controller wants to rely on this ground, they will have to show what the legitimate interest is, secondly, they will need to show that this processing activity is necessary to achieve the legitimate interest, thirdly, they will have to show that they have balanced their legitimate interest with the interest of the child. o Children rights will tend to weight more in this balancing exercise, it will be difficult for commercial interest to outweigh children’s rights.
        
        “the processing is necessary for the purposes of the legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child” Article 6(1)(f) (Look at Data Subject Rights Section
  - - - o Individuals have the right to be informed about the collection and use of their personal data (Article 12 GDPR)  “Given that children merit specific protection, any information and communication, where processing is addressed to a child, should be in such a clear and plain lanagugae that the child can easily understand” (Recital 58) • Article 50 para 2 (g) GDPR: codes of conduct • However, the interpretation of rights will depend on the evolving capacities of a child.
    - - Individuals have the right to have their personal data erased in certain specified circumstances and without undue delay (Article 17 GDPR)
        Necessity test: There will be a generally increased expectation of what may be considered to be necessary for children. The right to erasure is more likely to prevail if personal data is provided by a child.
        ‘Clean slate’ argument
        • Idea that whatever you have done as a child doesn’t haunt you forever.
    - - Individuals have a right not to be subject to automated individual descion making, including profiling (Article 22 DGPR)
        There is no absolute prohibition of profiling of children, only decision that “produce legal effects concerning him or her or similarly significantly affects him or her” are prohibited.
    - - Data controller have to implement data protection principles intot he design of their data processing systems (Article 25 GDPR)
        In the UK, The ICO drafted an age appropriate design code. If you fail to comply with this code, you are likely breaching the GDPR. The code expect from information society providers to take the best interest of a child.
    - - Data controllers must assess the impact of processing operations that are likely to result in high risk to the rights and freedoms of data subjects (Article 35 GDPR).
  - - - Conducting a Data protection impact assessment
        
        Where data controller take into account children’s rights and principles.
      - Data protection cannot exploit any lack of understanding or vulnerability of children
        
        Children may lack awareness of what marketing is.
      - When profiling might have a “similarly significant effect” on children’s fundamental rights and freedoms, Data controllers should refrain from doing these types of profiling at all.
      - Data controllers have to select a lawful basis for processing and should take a children’s rights based approach to this
- - - - Jurisdiction: Which court has jurisdiction in cross border dispute in B2C contracts?
        
        Article 18 Brussels I (Recast)
        
        Consumer bringing proceeding against Business
        
        A consumer can choose whether to bring proceedings in the court of the member state in which he or she is domiciled, or in MS of the other party (of the business).
        
        What counts as a consumer?
        
        Article 17(1) Brussels I (Recast) defines consumer as ‘A consumer can be considered to be a person who is acting ‘as being outside his trade or profession’’. (Covers users of social media services.)
        
        What counts as a business
        
        Brussel I (Recast) defines business as ‘A business has to pursue commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.
        
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        Business bringing proceeding against Business
        
        Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.
      - Does the business fall within the scope of the legislation?
        
        For businesses that are located outside of the EU but have a branch, agency or other established in one of the member state, are considered to be domiciled in that member state. [Article 17(2) Brussels I (Recast)] For business that are outside the EU, these rules do not apply.
      - Applicable law: What legal system will be used to solve the dispute?
        
        Art. 6 Rome I Regulation
        
        This states that the law applicable to consumer contracts will be the law of the member state where the consumer has his habitual residence, on the condition that the business pursues his commercial or professional activities in this country or directs such activities to that country.
        
        “Art. 6 Rome I Regulation 1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional: pursues his commercial or professional activities in the country where the consumer has his habitual residence, or by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities.”
        
        The difference here from the Brussels I Regulation is that the Rome I Regulation still allows the parties to choose their own law, but only if it provides the same level of protection to the consumer as that of his country of residence.
        
        “Art. 6 Rome I Regulation 2. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1”
  - - - Regs.13 - pre-contractual information disclosure requirement for distance contracts
        
        Before the consumer is bound by the contract, the trader has to provide certain information such as the main characteristics of the goods/services, identity and address of the trader, price incl taxes, delivery charges (complete list in Schedule 2), and the information should be displayed in in a detailed and clear manner, and in a way appropriate to the means of distance communication used. If trader fails to supply this info: consumer not bound by the contract (Regs.13 (1))
      - Regs.14 - requirement for distance contracts concluded [paid for] electronically
        
        14 (2): If the contract places the consumer under an obligation to pay, the trader must make the consumer aware [of the payment] in a clear and prominent manner, and directly before the consumer places the order
        14 (3): The trader must ensure that the consumer, when placing the order, explicitly acknowledges that the order implies an obligation to pay.
        14 (4): If placing an order entails activating a button or a similar function, the trader must ensure that the button or similar function is labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader.
        
        If trader fails to comply with (3) and (4): consumer not bound by the contract (Regs.14 (5))
      - Reg.29 - Right to Cancel
        
        Reg.29 (1): The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions— … Normal cancellation period –
        
        Reg. 30 Contracts for the supply of services or for the delivery of digital content supplied with a carrier medium: 14 days after the day of entering into the contract Contract for the supply of goods: 14 days after the day on which the goods (or in case multiple goods ordered, the final item) come(s) into the physical possession of the consumer or their agent.
        Extended cancellation period – Reg. 31 If trader does not inform consumer about right to cancel: 14d + 12 months [this is also an offence under Regulation 19]
        
        contract that can't be cancelled
        
        Regs 27-28: Contracts that cannot be cancelled: Products supplied by NHS, supply of prescription medicines, passenger transport services (Reg 27) Price-sensitive goods like gold or shares; personalised goods; perishable goods; supply of a newspaper; periodical or magazine; sales concluded at a public auction; supply of accommodation; transport of goods; vehicle rental services; catering… (Reg 28) Consumer may lose their right to reject under certain circumstances (Reg 28 (3)).
      - Regs. 35 & 34 -Returning items and shipping costs
        
        Regulation 35: Returning items and shipping costs
        The consumer must send off the goods under paragraph (2)(a), or hand them over under paragraph (2)(b), without undue delay and in any event not later than 14 days after the day on which the consumer informs the trader as required by regulation 32(2).
        The consumer must bear the direct cost of returning goods under paragraph (2) unless (a) the trader has agreed to bear those costs, or (b) the trader failed to provide the consumer with the information about the consumer bearing those costs o
        Regulation 34: the trader must reimburse the consumer for delivery costs unless consumer chooses a more expensive form of delivery
  - - - S.62 (4):
        "A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer."
        
        "Unfair": When would a term be considered unfair?
        
        Part 1 Schedule 2: contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.(acts as a red flag that signals it might be unfair, courts then have to take into account the circumstances)
        
        Transparency requirement: terms and conditions have to be transparency
        
        (10) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract
        
        Have to be drafted in a clear, legible and transparent manner.
        
        Make them prominently visible on the website
        
        Unilateral changes of contractual terms:
        
        (11) A term which has the object or effect of enabling the trader to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.
        
        (14) A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.
        
        (15) A term which has the object or effect of permitting a trader to increase the price of goods, digital content or services without giving the consumer the right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded
        
        Unilateral changes to the service:
        
        (13) A term which has the object or effect of enabling the trader to alter unilaterally without a valid reason any characteristics of the goods, digital content or services to be provided.
        
        Liability exclusions and limitations
        
        (1) A term which has the object or effect of excluding or limiting the trader’s liability in the event of the death of or personal injury to the consumer resulting from an act or omission of the trader.
        
        (2) A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.
        
        "significant imbalance"?
        
        "The requirement of significant imbalance is met if a term is so weighed in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in his power. This may be by granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of disadvantageous burden or risk or duty.” (Director General of Fair Trading v First National Bank PLC, [2002] 1 AC 481, 494)
        
        "detriment of the consumer"?
        
        Does not necessarily have to be a financial detriment, for example a term that allows trader to share personal info more widely than would be allowed by the data protection act.
  - - - If the commercial practice falls under any of these sections, the practice will be considered unfair
        
        General prohibition against unfair commercial practices
        
        Section 3(3):
        "A commercial practice is unfair if—
        (a)it contravenes the requirements of professional diligence; and
        (b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product."
        
        Professional diligence?
        
        “professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either— (a)honest market practice in the trader’s field of activity, or (b)the general principle of good faith in the trader’s field of activity;
        
        average consumer?
        
        An average consumer is a “reasonably well informed, reasonably observant and circumspect”
        2(2) CPUTR: “(2) In determining the effect of a commercial practice on the average consumer where the practice reaches or is addressed to a consumer or consumers account shall be taken of the material characteristics of such an average consumer including his being reasonably well informed, reasonably observant and circumspect.”
        There is also specific protection for vulnerable consumer, if for instance an influencer their audience are children or to a younger audience, the specific standard is the average member of that group: “In determining the effect of a commercial practice on the average consumer— (a)where a clearly identifiable group of consumers is particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, and (b)where the practice is likely to materially distort the economic behaviour only of that group, a reference to the average consumer shall be read as referring to the average member of that group.”
        
        Clauses on Misleading commercial practices
        
        Section 3(4)
        "A commercial practice is unfair if—
        (a)it is a misleading action under the provisions of regulation 5;
        (b)it is a misleading omission under the provisions of regulation 6"
        
        misleading action
        
        Section/Regulation 5(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
        (2) A commercial practice satisfies the conditions of this paragraph—
        
        (a)if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
        
        (b)it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
        
        (3) A commercial practice satisfies the conditions of this paragraph if—
        
        (a)it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or
        
        (b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
        -(i)the trader indicates in a commercial practice that he is bound by that code of conduct, and
        -(ii)the commitment is firm and capable of being verified and is not aspirational,
        
        (4) The matters referred to in paragraph (2)(a) are— (a)the existence or nature of the product; (b)the main characteristics of the product (as defined in paragraph 5); (c)the extent of the trader’s commitments; (d)the motives for the commercial practice; (e)the nature of the sales process; (f)any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product; (g)the price or the manner in which the price is calculated; (h)the existence of a specific price advantage; (i)the need for a service, part, replacement or repair; (j)the nature, attributes and rights of the trader (as defined in paragraph 6); (k)the consumer’s rights or the risks he may face.
        
        misleading ommission
        
        Regulation/Section 6:
        (1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
        
        (a)the commercial practice omits material information,
        
        (b)the commercial practice hides material information,
        
        (c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
        
        (d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
        
        (3) In paragraph (1) “material information” means—
        
        (a)the information which the average consumer needs, according to the context, to take an informed transactional decision; and
        
        (b)any information requirement which applies in relation to a commercial communication as a result of a Community obligation.
        
        Clause on agressive commercial practice
        
        Section 3(4): "A commercial practice is unfair if— (c)it is aggressive under the provisions of regulation 7"
        
        (1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances—
        (a)it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and
        (b)it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.
        
        Blacklisted commercial practices (prohibited)
        
        Section 3(4): "A commercial practice is unfair if (d) it is listed in Schedule 1"
        
        Schedule 1 examples:
        “falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer”
        Direct exhortations to buy to children: “buy my sweaters now!” or “Ask your parents to buy my sweater now!”
        The use of advertorials without clarifying that the promotion is paid for
    - - Self regulation: o The CAP code is enforced by the Advertisement standards authority, UK self regulatory body for advertising. It asks influencers to use hashtags like ad, advert, advertising etc in paid promitions.
    - - Competition and Markets Authority (CMA) CMA can enforce legislation by going to court o The UK is generally good at enforcing
        
        Advertising standards authority (ASA) can refer cases to local consumer protection authority to enforce