B. van der Sloot

Online tracking: Questioning the power of informed consent

Purpose – The paper aims to report the main findings of a study for the Dutch Regulatory Authority for the Telecommunications sector OPTA to explore how the new European ‘‘cookie rules’’ in the ePrivacy Directive impact on behavioral advertising practices via the storing and reading of cookies. The paper identifies the main dilemmas with the implementation of the new European rules. The Dutch case provides a valuable reality check also outside The Netherlands. Even before the amendment of the directive, The Netherlands already had an opt-in system in place. From the Dutch experience important lessons can be learned also for other European countries. Design/methodology/approach – After a brief analysis of the legal situation in Europe and in The Netherlands (section 2), section 3 reports about the findings of a survey among the main providers of targeted advertising in The Netherlands to explore the current use of cookies and targeted advertising practices. Section 4 describes the findings of a qualitative survey among Dutch internet users with the goal to define their level of skills and knowledge, acceptance of and behavior towards the placing and reading of cookies. A concluding section (section 5) summarizes the main findings and identifies implications for the future policy debate. Findings – The results show that the majority of the surveyed parties involved in behavioral advertising do not inform users about the storing of cookies or the purposes of data processing of the subsequently obtained data, neither have they obtained users’ consent for the storage of cookies. The authors also found that the majority of users lack the skills and knowledge to handle cookies. Social implications – The findings critically question the wisdom of the ‘‘informed consent regime’’ that currently lies at the heart of Europe’s ePrivacy Directive. The paper concludes with reflections about the concrete policy implications of the study, and a number of concrete suggestions of how to approach the future debate with regard to the regulation of online tracking and cookies. Originality/value – The approach of the paper is original in that it combines legal analysis with two surveys: one among behavioral advertisers and one among online users. This approach permits us to better understand the efficacy of the new legal rules, to make predictions regarding the level of compliance with the new rules and identify areas in this highly topical debate that require further attention.

The Practical and Theoretical Problems with ‘balancing’: Delfi , Coty and the Redundancy of the Human Rights Framework

In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. This article analyses those problems and compares the method of balancing with the original approach of most human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Rights case Delfi v. Estonia and the Court of Justice of the EUs judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. This is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. This article analyses those problems and compares the method of balancing with the original approach of most human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Right’s case Delfi v. Estonia and the Court of Justice of the EU’s judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. This is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.

Privacy as virtue: Moving beyond the individual in the age of big data

This book discusses whether a rights-based approach to privacy regulation still suffices to address the challenges triggered by new data processing techniques such as Big Data and mass surveillance. A rights-based approach generally grants subjective rights to individuals to protect their personal interests. However, large-scale data processing techniques often transcend the individual and her interests. Virtue ethics is used to reflect on this problem and open new ways of thinking. A virtuous agent not only respects the rights and interests of others; a virtuous agent has a broader duty to act in the most careful, just and temperate way. This applies alike to citizens, to companies such as Apple, Google and Facebook and to governmental organizations that are involved with large scale data processing. Van der Sloot develops a three layered model towards privacy regulation in the Big Data era. The first layer consists of minimum obligations that are independent of individual interests and rights. Virtuous agents have to respect the procedural pre-conditions for the exercise of power. The second layer echoes the current paradigm, the respect for individual rights and interests. The third layer is the obligation of aspiration. A virtuous agent designs the data process in such a way that human flourishing, equality and individual freedom are promoted.