TABLE OF CONTENTS Letter from the Editors by Matthew O’Shea and Ruby Porter [Page 4] The Ethics of Legal Technology: Legal Implications of Technological Decisions by Eleni O’Dwyer [Page 8] Artificial Intelligence and Human Rights - Contemporary and Future Problems Caused by the Rise of AI by Leesha Curtis & Eoin Jackson [Page 10] Social Media: The Saviour or Saboteur of Democracy? by Kate Flood [Page 13] Employing Technology to Assist Vulnerable Victims by Doireann Minford [Page 15] Green Technology Patents and Climate Change - Is it Finally ‘Easy Being Green?’ by Fergus Maclean & Katharina Neumann [Page 20] Accountability for the Anonymous by Grace Given, Niamh Robertson & Emily Barry [Page 24] Data Protection in the HSE: a case for Blockchain Technology by Ursala McDonnell [Page 27] A Wolf in Sheep’s Clothing: Deepfakes by Ciarán Quinn [Page 30] EyeWitness to Atrocities: Piecing Together the Pictures of War by Richard Wright [Page 32] The Metaverse Mining Movement: the Legal Ramifications Surrounding this Modern Digital Phenomenon by Hannah Hendry [Page 36] The Platform Problem and Khan’s ‘Amazon Antitrust’: How we let Big Tech write its own rules by Thomas Heron [Page 39] The Metaverse by Udita Gulati [Page 42] The Eagle: A Year in Review by Ellen Hyland [Page 46] Trinity FLAC: A Year in Review by Georgia Dillon [Page 48] DU Law Society: A Year in Review by Ruth Brady [Page 50]
The Eagle staff strives to practice ethical journalism and to promote integrity in its work. The editors and staff reserve the right to publish only those articles which they consider accurate and not injurious. All articles must meet these criteria in their inception and execution. The opinion articles do not necesssarily represent the views of the entire staff, faculty, students or administration of Trinity College Dublin.
Editor in Chief Matthew O’Shea
Deputy Editor Public Relations Officer Katharina Neumann Zoe Timmons
Copy Editor Ellen Hyland
Editorial Board
Aisling Corcoran, Antóin Fletcher, Catherine Forristal, Chloé Asconi-Feldman, Doireann Minford, Emma Bowie, Jacob Hudson, Julia Bochenek, Liam Ó Lionáin, Mark McGrane, Mira Bedi Muireann McHugh, Ted Halligan, Thomas Heron
The Eagle wants to be inclusive of the entire Trinity College Dublin community, and we welcome submissions from students, faculty and alums. If you would like to contribute, please contact us at our email. We do not guarantee that every article will be published. Every article submitted is subject to be edited for content and for size.
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All of the opinions expressed are those of the author and not necessarily of The Eagle. Design and Layout by Matthew O’Shea Cover Image by Matthew O’Shea
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Letter
Letter from the Editor A Chairde, It does not feel long ago that I first made my application to be part of The Eagle’s editorial board for Volume 7. Yet here I am, bringing my term as Editor in Chief of this magazine to an end. I am immensely proud to be launching our fourth issue of the year, in collaboration with Trinity Business Review. This issue contains some truly fascinating and thought-provoking articles, from a diverse set of disciplines, that encapsulate the theme of Law and Technology perfectly. In our world, we have grown so accustomed to technology that we sometimes overlook the astonishing things that it can accomplish. It is a tool which we can use for so much good, from environmental innovations to substantial increases in production, and which will serve as a benefit to us all. At the same time, however, there are dangers with unfettered technological innovation, and we must also consider how to innovate responsibly, so as not to do injustice to each other or to our planet. This year, we have seen record readership, covering a variety of different areas, from human rights to technology, and so much in between. I am also very proud to have featured our first ever pieces featuring an Gaeilge, embodying the seanfhocal “beatha teanga í a labhairt” - the life of a language is to speak it. I think this can be applied more broadly to our mission at The Eagle, as the same can be said for ideas. I am so grateful to have helped to facilitate so many great ideas this year, which have seen the magazine take on a new life of its own. For this our last issue, I want to ensure that all those who have helped to make this year what it has been are thanked - bear with me, there are a lot of them! I know that all of the success we have enjoyed this year has not been through luck, but rather the continued effort of a fantastic team. To our editorial board, Aisling, Antóin, Catherine, Chloé, Doireann, Emma, Jacob, Julia, Liam, Mark, Mira, Muireann, Ted, and Tom, I am so grateful for your energy and enthusiasm this year. Each of you has demonstrated a keen editorial ability, which I hope you will continue to use in the future. To Zoe, our most-experienced member and wonderfully-talented Public Relations Officer, I cannot thank you enough for bringing new life to The Eagle’s fantastic online presence, and I thank you for managing to make all of my ideas come to life. To Ellen, our Copy Editor, I am so thankful for all of the fantastic work you have put into our blog’s continued success. Seeing new pieces published each week on such diverse topics has been a joy, and your ability to add new shine and quality to each one is phenomenal. To Kat, I have learned so much from you, and I am so grateful for all of the fantastic work you have done as Deputy Editor, you have made my job so much easier with your many wonderful suggestions, often well outside of business hours. I know that each of you will continue to succeed in whatever you do next year. I am also incredibly grateful for all of the support we have received from our sponsors this year. From support with our print issues from Trinity Publications, Allen & Overy LLP, and Cleary Gottlieb Steen & Hamilton LLP, to our named sponsors at The Maples Group. So much of what we have accomplished this year has been thanks to your support and guidance. I am particularly thankful to Clare Kelly, The Eagle’s founder, and Aisling Ryan, Maples Group, for their ongoing support this year. Finally, to my friends and family, I am grateful for your ongoing encouragement this year. From providing thoughts on the many iterations of each issue to advice on some of the aspects of running the Gazette, I know that my life has been made remarkably easier by having your support. As I look to the future for this publication, I am filled with excited anticipation. Over the last few years, we
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have grown significantly, and I am confident that next year’s team will continue to build on the successes we have already achieved. I am very proud of what we have accomplished this year, and to have been your Editor in Chief for Volume 8. I can’t wait to see what’s next! Le gach dea-ghuí, Matthew O’Shea Editor in Chief The Eagle: Trinity College Law Gazette
Trinity Business Review (TBR) is delighted to collaborate with The Eagle for their fourth and final issue of this academic year. The theme of ‘Law and Technology’ is a particularly exciting one as it offers a wide scope to explore the interconnected disciplines of law and business. Technological advancements have accelerated at a pace faster than anyone could have anticipated and have improved our daily lives by making communication easier, creating better opportunities for learning, making information more accessible and paving the way for medical advancements which were beyond the scope of imagination 50 years ago. That said, the digital era is not without its drawbacks. Concerns about cyber security, data privacy, social disconnect, job loss and addiction dominate news headlines and continue to negatively impact our lives. This issue provides an opportunity to explore these problems and to consider the role technology will play in the future. Founded in 2018 by students from Trinity College Dublin, TBR aims to provide our readers with a unique insight into the business world and to maintain our position as Ireland’s go-to business publication for university students. The publication is a direct link from the private sector to university students to offer information about potential careers and internships and to give an insight into what a future career in business might look like. TBR is a multi-disciplinary publication. We want to engage with students studying courses other than business. In today’s ever-changing environment we recognise that students with diverse undergraduate degrees may go on to pursue a career in the business world. We urge anyone with an interest in writing about business, no matter their discipline or qualification, to reach out to us and become a part of the TBR team. As Editor of TBR for the past two years, I am thrilled to have seen the publication grow in size, not only in the number of contributing writers but also through our social media channels. I hope that the publication will continue to provide students with stories that interest and benefit them as they navigate the transition from university to working life, long into the future. Special thanks to Matthew O’ Shea and to everyone at The Eagle for allowing us to be a part of this issue, and I hope it makes for some interesting reading. Best wishes, Ruby Porter Editor Trinity Business Review 21/22
Photo courtesy of Matthew O’Shea, SS Law and Business
Photo courtesy of Matthew O’Shea, SS Law and Business
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Ethics
The Ethics of Legal Technology: Legal Implications of Technological Decisions By Eleni O’Dwyer, SS Law Introduction Technological developments have had an overwhelming effect on the nature of the legal field, with lawmakers struggling to keep up with technological change in many respects. This is amplified by the fact that the problems presented by technological decisions are not limited to any one form of technology or legal area. Broader Implications on the Legal Field The rise of technology has had far-reaching implications on the legal world; diversifying work, creating new areas of practice, and broadening the scope of legal problems. However, there are distinct challenges posed by widespread technological advances. Technological developments have the potential to undermine interests and values that the law seeks to protect. As a result, governments may be compelled to block or restrict the use of a form of technology to protect traditional values or settle moral arguments about the making of a technological decision.
As the scope of technological decisions is ever-growing, new realms of liability emerge. In the context of modern technologies such as artificial intelligence, the question arises as to the ability of a legal institution or law firm to have liability imposed on it for work carried out by a machine. Consequently, it is not only the technological decisions of clients that are at issue, but also the internal decisions made in law firms with respect to technologies adopted. Law firms must ensure that they are sufficiently cautious around employing various forms of technology in terms of managing and protecting client data. Legal Uncertainty as a result of Technological Advancements New technology often generates uncertainty as to the application of existing law. Such legal uncertainty is notably prevalent in the context of technologies that enable new forms of conduct, as this type of technological decision is most likely to have a direct impact on the law. For example, this is the case in the context of technological decisions made in the context of medical technologies such as in vitro fertilisation, which made possible the existence of two ‘mothers’ of the embryo in question (a woman providing an ovum, as well as a woman carrying the embryo). In the event of a custody dispute, a law giving custody of said child to its ‘mother’ inevitably becomes uncertain. Similarly, in the context of computer-generated works, the determination of an ‘author’ for legal purposes becomes uncertain. As such, the advancement of new technologies has the ability to render existing legal rules uncertain, while also requiring the development of new laws. Further, technological change has the potential to render laws obsolete. The law should not be static in its attitude towards technology, since “law must be contemporary to be viable.” Failure on the part of lawmakers to act and advance with technological decisions can lead to the law falling behind the times, thus becoming
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obsolete. Implications of Technological Decisions on Privacy Laws The technological transformation of the world has had overarching implications on the security of data. Privacy laws are a major consideration, as there has been a startling increase in the frequency and severity of cyberattacks against company data. These privacy law considerations are amplified by ransomware attacks such as that on DLA Piper, one of the world’s largest law firms, in 2017. High-profile cyber-attacks such as this provide cause for concern around the movement of sensitive documents and client data to cloud-based or otherwise remote systems, and as such, security measures adopted by a firm can be an important technological factor for a client in deciding which law firm to trust with their data. The most notable recent attempt to control technological decisions is the European Union’s General Data Protection Regulation (GDPR), requiring Member States’ governments to tighten controls on privacy breaches and cyber-attacks. However, in this technological age, the legal sector as a whole is tested on a constant basis, requiring a balance to be sought between regulation and privacy on one hand, and freedom and access to information on the other. Conclusions On foot of the above, it is evident that as technological advances are made, the legal sector must race to keep up with technology or risk laws becoming obsolete. In order to remain relevant and effective in the twenty-first century, the law must adapt in conjunction with technological developments. A paradigm shift in thinking is required on the part of the lawmakers—and states—as a whole, requiring extensive innovation to reconfigure the law in such a way that is compatible with technological developments. New frameworks must be created, bridging the gap between the fragmented legal policies towards advancements in technology, while also considering relevant ethical concerns. As such, law and technology must enter into symbiosis with one another, one constantly moving towards a common footing with the other.
Photo courtesy of Matthew O’Shea, SS Law and Business
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AI
Artificial Intelligence and Human Rights: Contemporary and Future Problems Caused by the Rise of AI By Leesha Curtis, JS Law and Business & Eoin Jackson, SS Law Introduction In recent years, artificial intelligence (AI) has developed beyond a mere figment of science-fiction, and is now a key part of business and society. AI is currently developing faster than it can be regulated, with legal frameworks becoming obsolete as soon as software is updated. A resulting lack of human rights protections has left consumers open to breaches of their privacy rights and even discrimination. Furthermore, as AI begins to mirror human traits, does it, itself, become entitled to human rights protections? The unprecedented growth of AI needs to be reconciled with robust human rights frameworks to prevent injustice. While AI has provided us with countless opportunities and more efficient operations, its impact on human rights should not be underestimated. Contemporary Human Rights Issues with AI In an increasingly virtual market, AI is synonymous with competitiveness. For many businesses their success is now intertwined with their ability to embed AI in their operations. However, with AI comes data analytics, and with this comes privacy rights. In order to maximise AI’s profit-making abilities, businesses need to harvest vast amounts of consumer data. Consequently, profit-making has become data-driven. This has resulted in implications for the privacy rights of consumers, as regulators are unable to keep up with the increased digitalisation of industries. Data has been described as the “new oil” and is now akin to currency, with consumers divulging their data in exchange for personalised experiences. On a superficial level, this seems mutually beneficial. It positions businesses to provide better services, thus boosting sales, and giving consumers superior experiences. This can be seen with Netflix and Spotify utilising data and algorithms to create personalised recommendations for users.
However, at what point does personalisation become an infringement on privacy rights? The implications of big data analytics became particularly stark in 2016 when they manifested themselves in the political sphere. Facebook’s involvement with the Cambridge Analytica scandal is a prime example of the weaponization of AI. Here, the data of millions of Facebook users was collected and utilised for political advertising in the US Presidential elections and, allegedly, the Brexit referendum. While Facebook was penalised with heavy fines, robust human rights frameworks are a more appropriate means of protecting privacy rights. Such frameworks are needed to ensure businesses view human rights protection as a necessary part of value creation, rather than an obstacle to innovation. The use of monetary penalties for such breaches demonstrates how underdeveloped this area of law is. At present, the closest we have to robust protection is General Data Protection Regulation (GDPR). The Irish Data Protection Commission recently fined WhatsApp for a lack of transparency in the implementation of Articles 5(1)(a), and 12-14 of GDPR. These penalties demonstrate governments’ willingness to engage with these issues. Unfortunately, such penalties are often viewed by companies as the “cost of doing business.” The cur-
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rent AI race acts as a perverse incentive for social media platforms to harvest their users’ data. Such penalties, therefore, fail to go to the heart of this issue as they are viewed by big tech companies as a hurdle in the path of profit maximisation. This was illustrated when Facebook was once again at the centre of controversy several months ago. Whistleblower and former Facebook data scientist, Frances Haugen, testified that the tech giant’s AI was being used to “amplify misinformation.” This highlights the ineffectiveness of financial penalties and the need for robust human rights protection in this industry. Privacy rights are becoming difficult to define. The boundaries of what is deemed private and public information are increasingly blurred. Consequently, it is difficult for lawmakers to hold companies to account or for users to know if their rights have been breached. Likewise, there is much asymmetric information between regulators and big tech companies. At present, lawmakers are reliant on whistleblowers, like Haugen, to expose issues with AI. The controversy and backlash that surrounds whistleblowing, leaves governments and regulatory bodies in a disadvantaged investigative position. More concerning still is the threat AI poses to the right to equality and the right to protection from discrimination.
Ultimately, as AI is created and trained by humans, it is not immune to human flaws such as prejudice and bias. This could have serious ramifications in our justice systems. Several jurisdictions have already adopted facial recognition as a tool for crime detection. However, it was revealed that this technology was prone to viewing black people as criminals. Thus, AI has the potential to increase systematic discrimination and widen racial inequalities. This is highly problematic as AI cannot be regulated or held accountable in the same way discrimination by humans can. In fact, this lack of accountability would embed inequality deeper into the fabric of society and irrevocably stack the deck against marginalised people. Future Human Rights Issues with AI - Should Robots Have Rights? It is clear that AI poses a significant challenge to existing human rights frameworks. These challenges are likely to be exacerbated as AI becomes closer to what could be perceived as human intelligence. In a scenario where AI technology can think and behave in a manner similar to humans, is it fair to treat it as if it is a mere tool for human achievement? There are potential ethical and moral dilemmas that could arise from the treatment of future AI technology as being without any form of rights or legal personality. For example, an AI technology that creates a work of art, as is already possible under existing technology, would have no intellectual property rights. Similarly, an AI which could hypothetically be self-aware, could not avail of any form of labour rights e.g., fair working conditions, which would lead to them being obliged to work whatever hours their human owner wished them to do. There are also questions as to whether we should continue to allow humans to harm AI machines without consequence if those machines were to develop emotional and intellectual self-awareness. A human who is cruel to animals can face civil and criminal penalties, yet the same protections are not available to AI, which may prove morally questionable as it gains greater intelligence. While some would consider these issues to be a matter for future regulators, it should be noted that several legislative bodies are already examining whether AI should be encompassed within a rights based framework. In 2017 for example, the European Parliament proposed the drafting of a set of regulations to govern the use and creation of robots and AI and debated on whether they should grant robots “electronic personalities,” to allow them to possess some form of protection equivalent to human rights. This would involve, according to the proposal, a concept of legal personhood similar to that possessed by a company. In other words, the AI would have the capacity to enter contracts, benefit from intellectual property rights and engage in legal action. However, they would not necessarily be protected in the same manner as humans. Indeed, the proposal stress-
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es that the sole task of AI would remain “to serve humanity.” There is no easy solution as to how AI should be protected. However, it should be noted that recognition of AI as having some form of legal personality would make it easier to remedy the rights violations outlined at the beginning of the article. If AI can both sue and be sued, then they can be held liable for any violation of privacy or anti-discrimination rights, particularly where the AI is deemed to be self-aware. Thus, as AI becomes more ‘human-like,’ it becomes important to consider what legal personhood should look like and what, if any rights, should both protect AI and protect us from its consequences? Conclusion AI is one of the greatest technological advances of modern times. However, with this creation comes a responsibility to ensure AI does not generate or exacerbate human rights violations. From privacy rights to discrimination, AI can circumvent our current interpretation of human rights and how they intersect with technology. This makes it difficult to regulate AI in a manner that ensures all of society can benefit from its usage. Similarly, as AI begins to parallel human intelligence and consciousness, there are questions regarding whether it is ethical to treat it as if it is merely another tool for human usage. Robots possessing human rights may appear to be a matter for science fiction novels; however it is becoming clear that interpretations of rights may need to be adjusted to reflect these moral quandaries. In doing so, our approach to animal rights or environmental rights may serve as a useful precedent for our future treatment of AI. Regardless of what approach is taken, it is evident that AI will be the next frontier in the human rights agenda.
Photo courtesy of Grace Given, SS Law and German
Social Media
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Social Media: The Saviour or Saboteur of Democracy? By Kate Flood, SS Law and Business There is ample social commentary and academic dialogue surrounding the ‘Catch-22’ nature of new media structures. Social media allows for constant and pervasive communication, seamlessly connecting people across territories and time zones. Concurrently, social media has been seen to have chilling psychological ramifications for users, causing isolation, depression, and addiction for many. The manner in which society consumes both information and material goods has become more convenient and extensive, coming at the cost of robust data security and protection. As such, social media is paradoxical in nature, facilitating favourable outcomes and trouble all at once. How does this play out in relation to democracy? As is characteristic of these platforms, there are both democratic advantages and disadvantages attached to social media. However, overall, does this technology stand to facilitate or inhibit democracy, and how, if at all, can the law be employed to assuage the dangers posed by social media in this context? Facilitating Democracy The European Parliament recognises democracy as relying “on citizens’ abilities to obtain information on public matters, to understand them and to deliberate them.” From this, it is clear to see that there are various ways in which social media could potentially foster and encourage democracy. This technology has democratised access to information, enabling people from every strand of society to gain exposure to the happenings of the world, either actively or incidentally. This, coupled with the interactive nature of social media, encourages the formation and sharing of ideas, thoughts, and opinions. Thus, political expression is facilitated. Per Lupia and Sin, people can now “post, at minimal cost, messages that can be viewed instantly by global audiences.” These audiences are generally heterogeneous, which has been found to encourage expression in and of itself. Moreover, the perceived accessibility, convenience, and variety of social media means that people can express themselves in different ways, depending on their motivations. For example, someone could tweet about a political incident, in real-time, so-called ‘second-screening,’ in order to vocalise an opinion or instigate a discussion. Alternatively, someone could ‘like’ or otherwise engage with content simply to indicate their support for particular groups or persons. In turn, this facilitation of political expression has been seen to give rise to political participation. The latter could not come about without the former, as political discourse foregoes political action. A multitude of studies have shown social media to be capable of encouraging political participation. The technology operates to expand social networks, thus increasing the likelihood of one’s being exposed to mobilising information, and content that moves one to engage and participate in politics. Such participation could remain within the virtual realm, in the form of online petitions or contributions, but also has the potential to extend into the real world, as people are motivated to participate in demonstrations. Inhibiting Democracy While the foregoing observations are indicative of a technology that could foster a better-informed society, such optimism has been dulled by recent studies, suggesting that the opposite is true. It seems intuitive that political learning would be positively served by social media, as it encourages engagement with political content. However, this ignores the reality of how the material is presented to the user on these platforms. Social media preys on the preferences of its users, creating feedback loops where the attitudes, preferences, and interests of the user are reflected in the content they are exposed to. This works to create and sustain ‘echo chambers,’ wherein individual views are reinforced. In this way, social media operates to advance political entrenchment as opposed to political learning, limiting users’ capacity to form balanced and informed opinions.
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Social Media
There is then the much-maligned issue of ‘fake-news.’ The use of media to spread disinformation is not old; indeed it is at least as old as the newspaper. However, the ease with which material can be created and distributed through this technology has exacerbated the spread of misinformation (any form of false information spread, regardless of intent) and disinformation (material spread with the intention to mislead and manipulate). This is because the focus is on attaining and maintaining engagement, with no regard for quality or journalistic ethics. False information can be used to confuse people, or persuade people to vote, or indeed not to vote, such that electoral outcomes are distorted. Such electoral distortion can also arise from microtargeting – the profiling and selling of user data for targeted advertising. This type of advertising can operate to re-engage citizens in the run up to elections or referendums, however, it can also be used for political manipulation, undermining the ability of voters to make their own political decisions. The prevalence and impact of microtargeting on electoral outcomes remain uncertain. Nonetheless, the risks it poses are likely to increase given the ever-growing prevalence of technology, and the high political and economic interests at stake. Restraining the Saboteur When it comes to easing the democratic deficit created by social media, one of the difficulties is that many of the issues attached to technology are by-products of the business model upon which the platforms operate.
Social media is predicated on a simple premise: capture attention, and monetise that attention through advertising. Therefore, there is an inherent incentive for these platforms to facilitate echo chambers and the dissemination of fake news. To counter this incentive, there need to be laws and policies put in place to address the risks posed to democracy. Attention has been given to enhancing transparency and accountability on the part of media platforms for filtering and moderating content. This could prove to be a risky strategy: media moderation could exacerbate entrenchment by inciting anger or disillusionment or work to justify political censorship, and by extension control over public discourse. With regard to the protection of personal data, the introduction of more robust digital privacy and data protection measures could operate to protect users and safeguard the democratic process. However, the efficacy of these measures will rely on the empowerment of citizens to better understand the democratic risks attached to social media. Such empowerment could be achieved through the support of independent media, and investment in improved digital literacy. Social media is a double-edged sword, presenting as both a potential saviour and saboteur of democracy. Through the guise of political expression and participation, social media presents itself as a useful and inclusive tool; one which chimes nicely with democracy as envisioned by the European Parliament. However, the indifference of this technology to the upholding of democracy is startling, and contrasts significantly with its appreciable and ever-growing impact on democracy. Therefore, it is contended that the saboteur edge is considerably sharper, but can be dulled if the requisite legal quagmire is navigated. Given the business aims of social media platforms, it is submitted that the law must intervene to save democracy from sabotage by social media.
Photo courtesy of Matthew O’Shea, SS Law and Business
Sexual Offences
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Employing Technology to Assist Vulnerable Victims By Doireann Minford, SF Law and Political Science Editor’s Note: This article discusses sexual offences against vulnerable victims such as children and those with intellectual disabilities, which some readers may find disturbing. Behind the 2,986 sexual offences recorded in 2020 are hundreds of vulnerable victims, including children and adults with intellectual disabilities. For these victims in particular, the prosecution and conviction process can be especially long and arduous. The criminal justice system in England and Wales leverages technology to enhance access to justice for vulnerable victims, but it can fail in ensuring a witness’s evidence is properly heard by the court. I will advocate for the use of intermediaries, a legislated for yet under-utilised tool in the Irish Criminal Courts. Article 42A.1 of the Irish Constitution provides that the State must, by its laws, protect and vindicate the natural and imprescriptible rights of all children. Over the last 30 years, the Irish criminal justice system has moved towards establishing a more victim-centric justice system. The common law traditionally recognised children as unreliable witnesses. The UK decision in R v Wright and Ormerod (1987) affirmed the decision set out in R v Wallwork (1958) that a child would rarely satisfy the statutory competency requirements of a witness. These decisions reflect the traditional approach of the criminal justice system in refusing to recognise a witness’s inherent right to have their rights vindicated based on age and cognitive function. People who have intellectual disabilities are significantly overrepresented as victims of crime. For people with intellectual disabilities, limited fluency skills can present a barrier to reporting sexual abuse, while also impacting their ability to deliver oral testimony in court. However, As Hepner, Woodward, and Stewart observe in their study, when interviewed in a non-leading manner, using questions that are specifically open, people with intellectual disabilities can recall information better and deliver a more accurate account. In such cases, their evidence should not be discounted. In cases such as People (DPP) v Molloy (1995), the Irish courts have found that a corroborative warning may need to be given to the jury in respect of the testimony of a witness suffering from a mental disability. The Criminal Justice (Victims of Crime) Act 2017 (the 2017 Act) gave effect to Directive 2012/29/EU of the European Parliament and the Council, establishing minimum standards on the rights, support, and protection of victims of crime and conferring special procedural protections on vulnerable victims. Under section 19(2) (c), those who have been identified as requiring specific protection needs can avail of the measures under Part III of the Criminal Evidence Act 1992 (the 1992 Act), enabling the victim to give evidence through a live television link. This provision liberalised section 13(1)(a) of the 1992 Act, which stipulated that this person should be under the age of 17, or apply for leave of the court to give evidence through a video link under section 13(1) (b). By contrast, the 2017 Act contains a mandatory presumption in favour of giving evidence via video-link for all child victims of certain specified offences under both the Child Trafficking and Pornography Act 1998 and the Criminal Justice (Human Trafficking) Act 2008, and inchoate versions of any of these offences. The use of live television links has been a useful resource to protect vulnerable victims from being further victimised as well as not subjecting them to the stress of undergoing the traditional adversarial trial process. Yet, there have been consistent reports of the video-link dropping during examinations. The courts require investment to ensure the latest technology is made available to victims, including high-resolution cameras with secure hardware and updated software at a minimum. Cases using video-link evidence are also often
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Sexual Offences
transferred to Dublin, lengthening the trial process. Ireland must adapt to this to serve witnesses in a timely manner. In this regard, the provision of live television link technology should be available in all courtrooms across the country. Section 36 of the 2017 Act introduced the explicit right to use screens in the courtrooms when child witnesses are giving their evidence. Video evidence is also admitted on a discretionary basis under section 16(1)(b)(ii) of the 1992 Criminal Evidence Act. In People (DPP) v XY (2010) the Central Criminal Court allowed a DVD recording of the pre-trial interview to be admitted as evidence-in-chief, while the Court of Appeal in DPP v TV (2017) displayed further enthusiasm regarding the admission of video evidence. Indeed, the English and Welsh courts routinely use pre-recorded evidence-in-chief. A multi-agency group of experts, convened by Rape Crisis Network Ireland (RCNI) have called for further liberalisation of the legislation and recommended that pre-recorded cross-examination should be used when hearing evidence from vulnerable victims. Introducing a barrier between the victim and the courtroom is necessary to ensure a victim does not feel under pressure during examination.
While video-links and screens can help protect the accuracy of evidence and mitigate the stress of a trial for vulnerable witnesses, it is submitted that technology can only go so far. Video-link technology does little by way of enabling vulnerable witnesses to give clear evidence in a manner they are comfortable with. Rather, intermediaries are essential to facilitating a fair trial and are rarely used by the Irish courts. Intermediaries do not mediate answers to questions, but the questions themselves. The intermediary ensures a vulnerable victim is comfortable with the trial process. He or she also assesses the extent to which the witness is able to understand a question and if not, will explain the question to them. As it is used in conjunction with a video-link, witnesses are given the opportunity to give fair and accurate evidence of their experience. For victims with intellectual disabilities, questions should be short and succinct, phrased in everyday language and be open-ended. An intermediary, not a video-link, can facilitate this within the Irish courts. Courts in the UK consistently use intermediaries to assist vulnerable witnesses. Section 16(1) of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act) governs the use of special measures in criminal proceedings involving witnesses who are particularly vulnerable on grounds of age or incapacity. Section 29 provides for the use of intermediaries, while Section 104 of the Coroners and Justice Act 2009 stipulates the role of the intermediary in vulnerable witness examination. The Witness Intermediary Scheme provides registered intermediaries in courts throughout England and Wales. Intermediaries can assess the barriers that witnesses with communication difficulties may encounter in delivering oral evidence and are trained to assist these witnesses in examination. Their testimony is valued at all stages in the court, with registered intermediaries assigned based on speciality, availability and geographical location. Due to the successful implementation of the scheme, the academic response has been positive overall. In this regard vulnerable witnesses in the UK are enabled by the courts to give their best evidence. While intermediaries were originally legislated for in Ireland in the 1992 Act, their assistance was only invoked by the courts for the first time in 2016. In our criminal justice system, the accused’s constitutional right to a fair trial co-exists with the State’s obligation to vindicate the personal rights of those who have been victimised. Unfortunately, legislation surrounding the use of intermediaries remains limited as to prescribing them detailed instructions as to what their role is and, therefore, the resources given to the use of them are limited. To assure the full vindication of vulnerable victims’ rights, an intermediary could be given an advisory role in the pre-trial process, informing the court of the accommodations needed by the particular witness. However, cohesive legislation and statutory guidance are required regarding the role of an intermediary before the scope of the intermediary’s role may be expanded. In its 2018 Report, Hearing Every Voice, Rape Crisis Network
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Ireland encouraged a concise purpose as well as rules to be given to intermediaries to ensure their correct use. Ultimately, they provide a favourable alternative to pre-recorded evidence being given in order to facilitate a balanced cross-examination and ensure a fair trial. Technology is a key component of any modern criminal justice system. In Ireland, there is a pressing need for technology to be updated to ensure the smooth running of criminal proceedings. Unfortunately, for the most vulnerable victims in society, technology alone cannot safeguard their right to be heard in proceedings that affect them. A better approach would be to employ the use of intermediaries in conjunction with video-link technology to ensure vulnerable victims’ stories can be told and their evidence is not unfairly disregarded due to prejudice.
Photo courtesy of Matthew O’Shea, SS Law and Business
Photo courtesy of Grace Given, SS Law and German
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Environment
Green Technology Patents and Climate Change - Is it Finally ‘Easy Being Green?’ By Fergus Maclean, Bachelor of Arts (International Relations) and Bachelor of Business Administration, Australian National University & Katharina Neumann, Deputy Editor, SS Law and Political Science The latest Intergovernmental Panel on Climate Change (IPCC) report on the effects of climate change concluded with the assertion that “any further delay in concerted anticipatory global action on adaptation and mitigation will miss a brief and rapidly closing window of opportunity to secure a liveable future.” This announcement reinforces the notion that climate change needs to be fought on all fronts. One such front is green technology, which combines technology, science, and innovation to allow human production and the natural environment to co-exist in a mutually inclusive way. Examples of green technology range from wellknown and widely adopted innovations such as LED lights, wind turbines, and solar panels, to more niche developments such as organic farming techniques that reduce soil exhaustion, or using concentrated red seaweed in cattle feed, which has the capacity to reduce methane emissions by over 90 per cent. As developing climate-friendly innovations has become a key priority in national and international environmental policies, intellectual property regimes play an increasingly important role in securing a safe environmental operating space. In particular, patent law is one of the most important regulatory vehicles promoting technological innovation in the sphere of climate policy. Patent grant procedures can often extend over several years - a cumbersome process that is criticised as stifling innovation. It is submitted that fast-tracking green technology patents is a key approach to encourage innovation in this sector and to send the right message in the fight against climate change. Patents are time-limited rights that prevent all other inventors from making, using, selling, or importing the patented inventions, ensuring that innovators can protect and utilise their inventions. They act as a tool for forwarding progress in science, technology, and industry. Patents grant limited-term monopoly rights in respect of new, innovative, and industrially beneficial inventions, thereby restricting the use of these inventions in the short run but creating societal payoffs in the long run. This encourages future innovation and development as they provide inventors with a competitive advantage. However, as patent applications are extremely detailed and undergo many steps of consideration by different expert groups, the process of obtaining a patent can often take years. In this regard, programmes for fast-tracking patent applications allow for accelerated examination of patent applications, aiming to bypass these long waiting periods. Countries such as the UK, Australia, Israel, Japan, Brazil, and the US have launched fast-tracking schemes for green technology patents, which can have real benefits in the fight against climate change. The World Intellectual Property Organisation (WIPO) states that fast-track procedures reduce the time from filing to grant by several years compared to ordinary examination. This acceleration allows patent applicants to licence and use their technologies earlier. Thus, green technology can become effective within a shorter time frame, leading to reduced emissions and expediting the effectiveness of green inventions. Further, such a procedure allows the early publication of the patent which increases the diffusion of the technical knowledge of the patent. An LSE study entitled Fast-Tracking ‘Green’ Patent Applications has shown that fast-track patents receive more than twice as many citations as patents of similar value filed through the traditional route in the short term. This diffusion of knowledge is welcome due to the urgency of the climate crisis as it increases development and innovation in the green tech sector, which leads to expansion of this sector, producing practices to combat
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climate change. Lastly, fast-tracking procedures have inherent benefits for the applicants as a fast patent grant will provide greater confidence in the technology, helping to attract investors, and aiding overall growth. This in turn increases the ability of the applicant to develop the technology further.
Overall, expediting the reward of time-limited rights for green technologies will lead to increased innovation within the sector which is crucial in the fight against climate change. The UKIPO Green Channel exemplifies the potential of fast-tracking green patents in practice and has become the second most popular patent fast-tracking system in the world. Ahead of its time, the Green Channel was initiated by the UK and China as a part of a routine Economic and Financial Dialogue in May 2009. With no legislative changes required, the Green Channel processing system was adopted one day later, allowing for patent processing times to be reduced from 2-3 years to 9 months where that patent request was for a climate-friendly innovation. David Lammy, Minister for Intellectual Property at the time, remarked at the outset that “climate change affects us all and any actions we take now to improve low-carbon technology has got to be a positive for both the environment and our future economic competitiveness.” Today, this statement has never been more relevant. The fast-tracked process is even more effective than anticipated, with some green patents being filed and executed within 3 months; an 87.5 per cent decrease from former processing times. This has had a positive economic and environmental impact, with companies implementing efficient and environmentally clean technology faster. The process to achieve a Green Channel acceleration is relatively straightforward. Jonathan Higgs, a director at Murgitroyd European Patent Attorneys, explains that “applicants must make a reasonable assertion that their invention has an environmental benefit and request accelerated treatment.” A simple statement may suffice in applications that have a self-evident environmental benefit, such as one involving renewable energy innovations like solar panels. Where the technology does not have an obvious link to environmental outcomes, this must be explored and clarified within the application. The Green Channel presents a ‘two birds with one stone’ opportunity for companies and the UK Government. On the one hand, technologies are legally protected and implemented into operations faster and with significantly lower processing times. On the other hand, the reduced time incentivises green technology, holding a variety of other benefits for both the public and private sectors. On the surface and under the microscope, Higgs asserts that “schemes like the UKIPO’s Green Channel encourage innovation and send the right message.” In contrast, no such fast-tracking procedure exists under the pan-European EPC (European Patent Convention). In Europe, patent rights are confined to national states but the EPC harmonises the means of obtaining and regulating national patent grants. Under the Convention, the European Property Office operates to fulfil these ends but EPC patents remain bundles of national patents, as validity and enforcement are completely subject to national law. As the ECP only regulates the procedure for obtaining patents, to have an effect the right must be validated by each national state. Although under the Convention it is possible to expedite patent grants through general acceleration programmes such as the accelerated process for all technology sectors for which green inventions will often qualify, it is submitted that considering the inherent advantages of a separate green patent fast-tracking system, such a system would be well worth adopting. Additionally, although the EPC is not part of the EU institutional framework, many of its members are EU member states, and EU environmental policies and regulations increasingly push the EPC to adopt a climate-conscious approach. Thus, it is submitted that the UK’s approach may be easily translated to the EPC as its wide-scope concept of green technology and shifting liability on applicants to submit their ‘green assertions’ will fit its institutional structure and prevent a sharp increase in patent backlogs.
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Environment
However, the proposed fast-tracking procedure also entails several challenges. First, deciding whether to use a fast-tracking initiative can be time consuming and costly as applicants must analyse a number of different rules, determine whether their new idea meets each programme’s eligibility requirements, and draft different claims for each programme. Second, since patent applications must be disclosed when the patent is granted, an early grant could result in an earlier publication date, which could limit the competitive advantage associated with using the technology. Lastly, licensing periods associated with patents may not be fully utilised, as there is no opportunity to use the processing period to plan for operational changes and implementation of the new technology. However, the majority of these drawbacks are situational. Where circumstances around fast-tracking appear costly, it is important for businesses to consider the material benefits of protecting their technology. Implementation periods that may have taken years previously can now be significantly shorter - a benefit that may outweigh the initial cost of consideration. Further, it is submitted that the external risk of another company using publicly available information to develop new technologies is rarely realised in practice. Finally, the timing of implementation is an unavoidable internal risk for a business, and this is routinely realised and mitigated in other ways that are separate from the patent processing time.
Ultimately, fast-tracking green patents ensures increased innovation in the green technology sector by rewarding inventors with the exclusive rights to protect and develop their inventions expediently. Such procedures further send the right message in order to encourage development in the sector. Overall, the scale of emission reductions required to combat the climate crisis raises the necessity of a holistic approach from both the technologies and the mechanisms that support them. An unconventional but effective way to address the crisis is through patent law, backing innovations that address climate change. Indeed, in this instance, it is actually easier being green, with fast-tracking procedures making a real difference to combat climate change.
Photo courtesy of Matthew O’Shea, SS Law and Business
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Defamation
Accountability for the Anonymous By Grace Given, SS Law and German, Niamh Robertson, SS Law and German, & Emily Barry, SS Law and German Introduction In late 2019, then Minister for Justice Charlie Flanagan pledged to present proposals for the reform of Ireland’s defamation laws by spring 2020. At present, the main legislation regulating the cybersphere is the Defamation Act 2009. While a 10-year period between Act and reform is a comparatively short period of time, in the context of the dynamic nature of the internet, reform is drastically needed. Online publishing via sites such as Facebook, Instagram, and LinkedIn has never been easier, faster, or more accessible and, as such, the possibility of defamation has never been more likely. Speaking at a symposium on the topic, Minister Flanagan described Ireland’s defamation laws as essentially seeking to balance three different rights - the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice. The intricacies of this balancing act are particularly difficult when it comes to anonymous online defamation. Defamation Act 2009 The tort of defamation as provided for by Section 6 of the 2009 Act, performs an extremely important function in vindicating an individual’s right to their good name and reputation by holding people accountable for false statements that “tend to injure a person’s reputation in the eyes of reasonable members of society.” However, it must also balance this right with the individual’s integral right to freedom of expression. The Act, in Section 6(2), provides for defamation “by any means,” which includes online defamation. This extends to comments and posts on social media platforms, such as Instagram and YouTube, as well as to group messages on WhatsApp or communications by email. The unique nature of defamatory comments made online is that they can instantly become viral, spreading like wildfire and causing severe reputational damage. Online Anonymity Anonymous posting online poses a particular challenge for defamation law. Although it was possible to publish opinions or comments anonymously or under a pseudonym before the advent of the internet, such statements were different in that they were usually published in a magazine or newspaper. Therefore, while the author remained anonymous, it was possible for a claimant to seek damages by turning to the traditional publisher. In other words, victims of defamation had a means by which to vindicate their right to a good name. However, with the rise of online media, and particularly the use of online platforms and intermediaries who often play a passive, rather than active role in the dissemination of users’ opinions, such an option is no longer available for claimants. The issue of anonymous posts online is further complicated by the difficulty of identifying such users. It is rare that, during the publication of online communications, any form of real identity verification will be required; online communications generally rely on the self-identification of users. While this makes it easier for those who wish to post anonymously, it also provides a considerable challenge for those who wish to identify a tortfeasor. Although such a task is possible, it is generally both costly and time consuming. If a user is determined to remain anonymous, it is possible for them to do so through the use of anonymous proxy servers. Using an IP address to establish the identity of a user is only helpful to a certain extent; IP addresses are linked to the source, but where a source (e.g., a computer or a smartphone) is used by numerous people, then it is impossible to know by which person the material was posted. Another obstacle to overcome is whether the Internet Service Provider (ISP) will be willing to share such information, as ISPs are generally under a contractual
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obligation not to share personal information, as well as being subject to data protection laws. Therefore, when such information is sought after, a court order is generally required. The basis for such an order at common law was established in the case of Norwich Pharmacal Co v Commissioners of Customs and Excise [1974], in which “the House of Lords established that when a person is involved in or even unwittingly facilitates the tortious acts of others, he comes under a legal duty to assist the injured person by disclosing the identity of the wrongdoer.” However, where such an order is successfully sought, the costs involved fall on the applicant to be paid, thereby hindering the effectiveness of such a remedy in practice. Norwich Pharmacal Orders were recognised in Irish law in the case of Megaleasing UK Ltd v Barrett (No 2) [1993]. EU Directives also provide some clarification in this area with the EC (Directive 2000/31/EC) Regulations 2003 (the “E-Commerce Regulations”) protecting Intermediary Service Providers (ISPs) where they are acting as “mere conduits” for consumers to access content through their internet service, and where they are not aware of the defamatory nature of the content. In light of these difficulties, it has become pertinent for updated legislative intervention. This has come in the form of the recent Defamation Bill. The Social Media Platforms (Defamation Amendment) Bill The Social Media Platforms (Defamation Amendment) Bill, which is currently before the Dáil, proposes to place the responsibility for the actions of such anonymous users onto social media companies. If passed, this Bill will require social media companies to reveal the identity of online anonymous tortfeasors and failure to do so will give rise to a defamation suit against the company itself. Secondly, Section 2 of the Bill provides for the insertion of Section 32 A into the Defamation Act 2009. This provides that a social media platform will be found guilty of an offence where they are unable to identify the person who published the original defamatory utterance. The section goes on to deem it irrelevant whether the person had supplied false information regarding their identity to the social media platform or whether the social media platform has any process in place for verifying users’ identity. This serves both a short and long term purpose. In the short term, those seeking damages for defamatory statements have access to redress even when the tortfeasor is anonymous and the social media company is unable or unwilling to provide the identities of those posting defamatory statements. In the long term this should serve a wider social policy purpose, encouraging social media companies to monitor online defamation more scrupulously and oblige them to maintain a degree of accountability in terms of how they run their platforms. Criticisms of the Bill A key question in respect of this Bill is whether it strikes a proportionate balance between the right to free speech protected in Article 40.6.1.i of the Constitution of Ireland and the right to protect one’s reputation from false statements that may injure their good name within society which is guaranteed in Article 10 of the European Convention on Human Rights. The Bill’s critics may contend that this is an apt example of “the freedom of one individual beginning where the freedom of the next individual ends.” While such a position might be regarded as overly-sceptical in the case of restrictions to freedom of speech, it is arguable that one can never be sceptical enough. However, a line must be drawn between freedom of expression and spreading falsities. As the Bill does not pose additional restrictions on speech outside of those that already exist, it does not necessarily represent an inordinate interference with freedom of speech. It does, however, increase accountability on the part of those who seek to use anonymous accounts as a shield against potential liability. This Bill will ultimately result in companies, who did not defame anyone themselves, paying the price for defamatory statements published on their platforms. A company may argue that it does not have the same degree of oversight as comparable institutions, such as newspaper outlets, who edit and oversee their publications. It is contended that, whilst these are respectable arguments, ultimately in the case of anonymous defamation, to leave a claimant without a remedy is patently unacceptable.
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Defamation
This Bill essentially forces companies to improve their handling of account identification or pay the price as though they themselves had posted the defamatory statement. Therefore, it is maintained that this strikes the appropriate balance between the rights at play. Tackling the practical application of the Bill might prove challenging. Firstly, while Section 1 of the Bill defines a “privately operated social media platform” as referring to “any third party which is hosting a publicly available, interactive website which allows users to produce, post and interact through text, images, video and audio to inform, share, promote, collaborate or network,” it remains unclear whether this applies to all online intermediaries, including, for example, Google. Secondly, Section 2 of the Bill provides for the insertion of Section 32 A into the Defamation Act 2009. This provides that a social media platform will be found guilty of an offence where they are unable to identify the person who published the original defamatory utterance. The section goes on to deem it irrelevant whether the person had supplied false information regarding their identity to the social media platform or whether the social media platform has any process in place for verifying users’ identity. However, this places a great responsibility on social media platforms, as the social media platform must adequately identify the person, lest they themselves be held liable for the defamatory comments. Placing such a high expectation on social media platforms could lead to the introduction of real-name verification on these sites in order for such sites to avoid criminal liability. Such an approach to online comments was introduced in South Korea in 2009 but has since been relaxed due to the numerous issues arising. Firstly, some websites, including YouTube, simply suspended the use of some commenting and uploading functions in South Korea, so as to avoid the need to verify account users. This led to users accessing the website through the use of a VPN. Furthermore, since websites then became a haven of personal information, they became a target for large-scale hacking. Conclusion There currently exists a legal lacuna in the area of anonymous online defamation. The internet, by its very nature, poses myriad challenges in terms of regulation and modulation. The Social Media Platforms (Defamation Amendment) Bill serves as one way in which this gap could be bridged and anonymous posters could be held to account by those who have suffered as a result of their defamatory comments. The Bill, however, is not without its limitations and a number of valid questions have arisen in respect of its practical application. The rights-balancing aspect of this issue poses an additional challenge to lawmakers and the feasibility of the amendments, in the context of the ubiquitous nature of the internet, remains to be seen. What remains clear, however, is that reform, in some form, is drastically needed and perhaps the Bill is a step in the right direction.
Photo courtesy of Matthew O’Shea, SS Law and Business
Data
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Data Protection in the HSE: a Case for Blockchain Technology By Ursala McDonnell, JS Law and Political Science As conservators of patients’ sensitive medical information, healthcare systems require a unique level of security and privacy. Healthcare providers enter information into special databases that are structured to improve patients’ privacy rights. Nevertheless, in the wake of the cyberattack on the Health Care Executive (HSE), the current systems in place are not sufficient to carry out this function. This article seeks to investigate the implications of adopting blockchain to tackle the cybersecurity issues within the HSE to prevent future crises. The Health Service Executive operates as the primary national public health system in Ireland. Under the General Data Protection Regulation (GDPR) and the Data Protection Acts 1988-2018, the HSE is obliged to safeguard the privacy rights of patients with respect to the regulation and processing of personal information. Such a duty was severely impaired by the aggressive cyberattack which targeted their IT infrastructures in 2021. On 14 May 2021, the HSE’s IT systems were infiltrated using Conti ransomware, causing all of their systems to fail. Conti usually forces a ransom payment by stealing files and encoding IT systems and workstations to prevent access. In instances where the ransom is not discharged, the Conti hackers will sell or publish the misappropriated information to public websites they administer themselves. In the case of the HSE, Conti gained access to its IT infrastructure by sending an email to a user of an HSE workstation. This email contained a malicious Microsoft Excel file which the user opened, thereby granting access. After securing access, 80 per cent of the HSE’s IT systems were encrypted. In addition, the hackers blocked access to diagnostics and medical records, released the private data of thousands of recipients of the COVID-19 vaccine, and exfiltrated uncoded data such as protected health information. After the initial access, the hackers operated in the system for two months before the ransomware detonation occurred in May. The event has been regarded as the most significant cyberattack on an Irish state agency and further, the largest known cyberattack against a healthcare service computer system. One question remains:
How could a cyberattack of such nature be operated on what was supposed to be a highly safeguarded system? It may be argued that the HSE neglected its duty to protect the private data of individuals in its failure to develop an adequate cybersecurity strategy. Indeed, in the Independent Post Incident Review on the HSE’s operational and technical preparedness for the crisis, it was found that the healthcare provider had a low level of cybersecurity maturity and as a result was insufficiently equipped to deal with the hacking. This cyberattack has revealed a stark need for the healthcare system to re-evaluate its cybersecurity strategies in order to prevent the future occurrence of a similar infiltration. Indeed, an attack of this nature is not unique to the Irish healthcare system. According to the FBI, more than 400 healthcare networks have fallen victim to similar attacks worldwide. Researchers have identified alternative methods of protecting the private data of patients in order to prevent cyberattacks on medical databases, with some underlining the usefulness of blockchain technology to address these cybersecurity challenges in healthcare. Blockchain is employed to record data in a way that renders the altering, hacking, or cheating of a computer system virtually impossible. Launched in 2009, it has gained widespread attention for its ability to provide
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Data
services such as traceability, security, and non-repudiation as a result of its advanced technological features that can store information in a private and secure manner. A blockchain operates by collecting and holding together ‘blocks’ of information in a database known as a ‘digital ledger.’ These blocks have specific storage capacities that close and link to the previous complete block when filled, assembling a chain of information known as a ‘blockchain.’ This network is irreversible and is administered in a distributive and decentralised manner so that it is managed collectively by multiple anonymous accountants, unlike other databases where one party controls who can change data entries, providing a high degree of security as each transaction in the ledger is verified by different accountants, safeguarding it from corruption. Blockchain technology is commonly known for facilitating the use of cryptocurrency. However, among other industries, it may be able to address security issues in healthcare systems, particularly in the HSE, which currently requires a full remodelling of its cybersecurity system. Blockchains can enable greater authentication of medical records and other patient information in comparison to other databases on account of the verification mechanism embedded in its technology. This mechanism also authorises alternative methods of identity verification beyond governmental ones. Crucially, these verification mechanisms allow healthcare networks to better detect fraud and identify data corruption, which is clearly lacking in the HSE. Indeed, it is suggested that had the HSE employed blockchain technology in May 2021, the file which triggered the entire cyberattack would have been identified as malicious and consequently, the attackers would not have been able to enter its IT infrastructure. In light of its advantages, there is a clear case for the HSE to implement blockchain technology as they advance their cybersecurity strategies in the wake of the 2021 crisis. Nonetheless, the issues associated with the use of blockchain technology must also be acknowledged. As a new and developing technology, additional research is required to evaluate its application to the healthcare industry. More specifically, the legal implications of implementation must be analysed. As the HSE is required by law to comply with the provisions of the General Data Protection Regulation, the implementation of blockchain technology could potentially conflict with its patient data obligations. For example, blockchain technology facilitates interoperability within healthcare systems because its decentralised system separates ledgers from one main server to numerous other servers. While this lessens the difficulties encountered by hospitals when sharing and accessing medical records, it fails to comply with Article 6 of the GDPR which provides that healthcare providers must ensure that patient information is only used for a specific purpose. Another issue is the fact that blockchains are irreversible, contrary to Article 17 which requires that patients have the right to delete their data. At the same time, Article 12 of the GDPR requires healthcare systems to provide patients with information about how their data is collected, processed, who has access to it, and how it is secured. This could facilitate the legal adoption of blockchain technologies by the HSE if it is adequately communicated the purpose of its implementation in their database or if they use permissioned blockchain, that is, only a closed network of designated parties may participate and verify transactions. In the absence of relevant case law, it is difficult to conclude whether the adoption of blockchain technology by the HSE would be wholly incompatible with the GDPR. Indeed, the European Parliament’s 2019 report on ‘Blockchain and the General Data Protection Regulation’ was inconclusive on the incompatibility issue, deeming that the main problem does not appear to be the technology as a whole, but rather specific points of tension that need to be examined on a case-by-case basis. The meaning of ‘erasure’ in Article 17, concerns about anonymous data pursuant to Recital 26, and no definition provided by Article 22 for a ‘data controller’ were some of the specific tensions highlighted by the Parliament that make it difficult to conclude how the technology can be applied, if at all. Nevertheless, it is evident that a highly secure, decentralised network would improve the current cybersecurity strategies undertaken by the HSE to safeguard patients’ privacy rights. As the HSE is in the process of completely reimagining its current cybersecurity structures, it is submitted that it should consider modernising in the direction of blockchain technologies in order to adequately perform its duty to protect private information.
Photo courtesy of Matthew O’Shea, SS Law and Business
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Deepfakes
A Wolf in Sheep’s Clothing: Deepfakes By Ciarán Quinn, SS Business Studies and German Recently, a video emerged of Tom Cruise in a jewellery shop. While this situation in itself is hardly eyebrow raising, the fact that the American actor was speaking fluent Mandarin in the tone reflective of a giddy teenager certainly is. Even if the video is in jest and self-evidently questionable as to its authenticity, such clips raise questions regarding the extent of artificial intelligence’s ability to create “deepfake” videos. Consequently, and more worryingly, it also highlights what is at stake in the financial, political, and legal spheres. Deepfake, a term coined in 2017 by a user on Reddit, refers to the use of deep learning by artificial intelligence to allow for the transfer of one’s likeness onto another’s, whether that be in the form of a video address or a voice message. Deepfakes aren’t a new phenomenon; their origins are traceable to academic endeavours in the 1990s, as well as initial sources of photo editing occuring in the 18th century, with double exposure of film allowing for photos to be merged together. Much of this progress was subsequently picked up by online communities, from which deepfake technology has flourished, both for better and for worse. This technology has allowed for bias and prejudice in film to be addressed through the reimaging of characters as people of colour or in reversed gender roles. Deepfake technology has also allowed for the re-touching of historical footage. This means that deepfake infused films are becoming more accessible and relatable to younger generations, as well as more sentimental purposes such as enabling portraits of loved ones to become alive and smile, as seen on social media platforms such as TikTok. What makes deepfake technology all the more attractive and applicable is its availability online through outlets such as Github, which provides as many as 80 individual open source deepfake-applications. As with many great inventions, there is a sinister side. Unfortunately, the surge in the uptake of deepfake footage (15,00 deepfake videos online in 2019 versus 145,000 in 2020, spurred on by the pandemic) has caused it to fall victim to malevolent purposes. The propensity of deepfake technology to put a person’s face on another’s body has had vicious ramifications. This has been utilized to spread misinformation to the detriment of political opponents, one such example being a video circulated in 2019 of the House of Representantives speaker Nancy Pelosi appearing to slur her words while giving a speech. While the potential for such deepfaked videos to harm a politican’s standing are clear, what is even more frightening is its effect on the ordinary person. Deepfake technology has allowed for an upsurge in online blackmailing, with victims of such attacks having their likeness superimposed onto staged videos, which are subsequently uploaded to pornographic sites as a means of humiliation. The likeness of victims is scrubbed from social media platforms, which is then input into artificial technology to produce such footage. The same holds true for audio footage, for example audio recordings of a business executive requesting a large transfer under dubious circumstances resulting in the fraudulent theft of millions of euros. One of the first reported cases of fraud involving deepfakes occurred in 2019 when a U.K. based company was stripped of just over €200,000, when a German-accented partner requested the urgent transfer of the sum to a Hungarian supplier, which ultimately ended up in a Mexican bank account before disappearing. Despite the relatively recent deployment of deepfake technology in such illegal activities, estimations placed the value of deepfake facilitated fraud at over $250 million in 2020. Even with such acknowledgement of the current and growing threat of deepfake technology, one may still retain solace in their self-awareness. Deepfakes currently struggle to defeat the human eye, and upon close inspection it is relatively easy to ascertain what is reality, and what is a deepfake. The battle against deepfakes
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is, however, ongoing, and given the alarming rate at which this technology is developing, coupled with the criminal intent to utilize it, this peace of mind will not last for much longer. Ongoing events in Ukraine reflect this sentiment. As Russian missiles roared overhead, Ukrainians were left in disarray, presenting an opportunity for spreading misinformation. Among such coverage emerged two particularly relevant clips. One relates to the Russian Federation’s President Vladimir Putin announcing peace in Ukraine with plans to absorb the eastern Donbas region into Russia, while Crimea, which has been annexed by Moscow since 2014, would become an autonomous state within Ukraine. Another relates to President Zelensky of Ukraine, who could be seen in a press conference announcing the capitulation of Ukraine to the invading Russian Forces. While both clips can be seen to be fake, as proven by the questionable facial movements or disparities in intonation (as audio clips still require a voice actor to mimic the victim’s voice to provide a model for the deepfake technology), in a time where civilians are left scared and confused, such clips can sow the seeds of havoc and turmoil. Furthermore, in the context of combat, Russian troops frustrated by logistical and operational complications plaguing the invaders, have become bogged down across Ukraine. This has resulted in the Russian forces opting to communicate via unencrypted radio transmissions between one another. The use of such open radio channels has allowed Ukrainian saboteurs to further frustrate Russian communication by jamming signals. The use of deepfake technology also holds potential here, with the ability of ground forces commanders to have their likeness deepfaked across radio communication. This would allow for Ukrainian forces to deploy mimicry, giving out dud-orders through deepfake applications to instil further panic and disorganization among the Russian army. From such developments, it is clear that the propensity of deepfake technology to capitalise on disorder is potent, but the ability of deepfake technology to mimic political figures has the potential to influence elections, disenchant supporters and cause general havoc within the political sphere, even in times of peace. Deepfaked clips of personalities such as Boris Johnson, Jeremy Corbyn, and Donald Trump are widespread. Many scholars have already pointed to the similarities between historical disinformation spreading; including the doctoring of inscriptions from Roman times to rewrite history, or the many air-brushed photos from Stalin’s tyranny.
Soon, the emerging capabilities of deepfake technology may pose more bad than good. Despite the clear dangers, legislation across the world has failed to properly address deepfakes. Legislation in Texas and California has been passed to mitigate the use of deepfake technology coming up to elections, however as pointed out by Matthew Feeney, the scope of this legislation is incredibly narrow, and infringes on freedom of speech, bars the use of deepfake technology even for satire, and overall seems to serve more of a federal interest above anything else. In the UK there is no specific deepfake legislation, nor are there “deepfake intellectual property rights” which may be relied on within a dispute. This means any endeavours by a victim to stop such harassment rest upon proving a violation of privacy. Such a defence, as pointed out by Carlton Daniel and Ailin O’ Flaherty, relies upon a multitude of cobbled together defences, which are nowhere near sufficient to support the affected party. Irish courts have previously accepted proposed legislation tackling the issue in the form of the Harassment, Harmful Communications and Related Offences Bill 2020, which aims to protect victims from pornographic deepfaked videos online, but for the moment, more must be done legally to mitigate the dangers surrounding deepfakes.
Photo courtesy of Matthew O’Shea, SS Law and Business
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War
EyeWitness to Atrocities: Piecing Together the Pictures of War By Richard Wright, SF Law In the age of smartphones and social media, piecing together the events of war to hold violators of international law accountable is a complicated task. According to Bellingcat, investigators using open-source material (meaning the use of information publicly available, such as photographs and videos on social media), have footage of the Syrian Civil War that is longer than the war itself. This creates an oxymoron for investigators of war crimes, such that there is an abundance of evidence but too much to verify, none of which can be taken at face value. One initiative of the International Bar Association (IBA) could offer a solution to this problem. The IBA combined citizen journalists, the law, and technology to create a mobile app: eyeWitness to Atrocities. Launched in 2015, the app ensures that photographs and videos of war taken on a mobile phone are verifiable, such that they have a clean “chain of custody.” According to Wendy Betts, eyeWitness Director, this means that “you understand where that piece of evidence has been and who’s had access to it and the ability to potentially change it from the point it was created, collected, gathered, found until it goes before the court.” The app operates by allowing users, including civilians, to photograph war events and upload them directly to an encrypted server operated by LexisNexis Legal & Professional who then catalogues the files. These catalogues are then passed on to legal partners, Debevoise & Plimpton, Hogan Lovells and Linklaters, where pro-bono lawyers use their knowledge of the rules of evidence to review, tag, and compile thousands of files into dossiers – contextualised collections of evidence – which are then transferred to investigators to be used by different actors. In the context of Ukraine, this could include the International Criminal Court, the Ukraine Prosecutor General, or the United Nations. Betts acknowledged that verification is an intensive and time consuming process but stated that “[w]hile there have been many photos and videos of the situation in Ukraine recorded and circulated online, this footage will have to be verified before it can be relied upon as evidence in investigations.” In light of Russia's denial of deliberately executing civilians in Bucha, arguing that the bodies with their hands tied were not there as the Russian forces retreated – only to be rebutted by satellite images showing the bodies at the time of Russian occupation – the app could aid in countering such claims as “[t]he goal of eyeWitness is to equip individuals with the ability to record photos and videos that can be quickly and easily verified” rather than waiting for the media to arrive following the liberation of a city. Moreover, Human Rights Watch has pointed out Russia’s use of cluster munitions, a large bomb that disperses many smaller bombs. While Russia is not a party to The Convention on Cluster Munitions, an international agreement banning these horrific weapons, their use in civilian areas constitutes a war crime under Article 8(2) (b)(xx) of the Rome Statute, prohibiting the employment of “inherently indiscriminate” weapons. While Russia is no longer a party to the Statute since 2016, Ukraine has, pursuant to the Statute, accepted ICC jurisdiction on an open-ended basis for war crimes committed on its territory. Photographic evidence of the remnants of these weapons can be found online. Although, for these images to be submitted as evidence, there needs to be a chain of custody. eyeWitness to Atrocities can ensure this chain, therefore verifying this evidence.
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As the war in Ukraine is playing out across people’s smartphones, this technology could play a major role in holding Russia accountable for its actions in Ukraine. As IBA Director, Mark Ellis stated that, “the documentation of crimes [in Ukraine] through videos and pictures will play a vital role in the Court’s efforts to ensure those who have committed war crimes are brought to justice.” In coordination with other NGOs in 2018, eyeWitness was responsible for the successful prosecution of two commanders of Democratic Forces for Liberation of Rwanda in the Democratic Republic of Congo after an attack and burning of a village, resulting in the death of 48 civilians. Using the eyeWitness app, 92 photographs were taken of “individual and mass graves, as well as the injuries of surviving victims” which played a major role in the prosecution of the leaders of the attack. This was a “historical moment for both survivors and international law” as it was the first time mobile device evidence was admitted for breaches of international law. Since the military coup in Myanmar last year, which has killed over 1,500 people according to the United Nations, the app has been translated into Burmese and downloaded over 3,000 times. In regions where there is political violence and a lack of independent media coverage, technology such as this is imperative to ensure that there is means to know what is happening in the country and to prevent impunity. Often during wartime, bombs begin to fall and cities and villages turn dark, physically and metaphorically, and the rules of society, both legal and social, fade into a shadowy abyss. Within the sphere of such structural violence, there may be a perception of anarchy, yet outside this sphere the rules of war are investigated and applied; the difficulty is obtaining the evidence that ensures their application. Throughout history it has been an uphill battle for researchers and investigators to get conclusive, reliable access to the scenes of atrocities, as they would need to be there physically to witness the immediate aftermath of the violence – a complicated endeavour in situations of martial law, bureaucracy, and in vast areas with multiple theatres of conflict. Alternatively, researchers would need to rely on the difficult-to-verify stories of a shell-shocked population whose recollection of their worst nightmare is overshadowed by the trauma of survival. Technological advancement allows investigators to bypass these roadblocks, utilising witnesses to capture the fresh, untouched crime scenes in all their brutality. From thousands of kilometres away, investigators can shine a light on the darkness and piece together a picture to be used to bring justice to the victims of atrocities.
Photo courtesy of Matthew O’Shea, SS Law and Business
Photo courtesy of Grace Given, SS Law and German
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Crypto
The Metaverse Mining Movement: the Legal Ramifications Surrounding this Modern Digital Phenomenon By Hannah Hendry, JF Law In modern times, the concept of cryptocurrencies has become increasingly popular. It is paving the way for a new digital era in our society. At the touch of a button, people have become millionaires overnight. It could be perceived as the modern equivalent of discovering oil in the Middle East or gold in Alaska. In the contemporary world, mining for oil has been challenged by mining for coins. Bitcoin mining emits 37 megatons of carbon dioxide into the atmosphere annually. Cryptocurrency Cryptocurrencies will have significant impacts on our economy and future financial situation. Cryptocurrency is a digital currency in which the transactions are verified. These transactions are recorded onto a system called a blockchain. Bitcoin is the most popular coin, the chain that put cryptocurrency front and centre. It is a powerhouse that commanded the world’s attention, unveiling it as a serious rival to fiat currency. Fiat currency is a government-issued currency that is not substantiated by a commodity such as gold. The introduction of blockchain to the internet created a single identity online. It encompasses all of our data together. This increases accountability, accessibility and security. This altered how we manage our space on the internet. In 2008, the global financial crisis collapsed our economies. The tooth fairy struggled to finance our tooth collections, leaving us sleeping on pillows of lead instead of secure financial gains. With no gold for our tooth fillings, no coal for our fires, a dire situation arose. However, through the ashes, Bitcoin emerged as a modern day Wall Street proposition built on a blockchain. Cryptocurrencies do not suffer the same repercussions that fiat currencies and stocks endure through periods of great economic stress. Nevertheless, cryptocurrency also encounters hardships. Are there any laws to protect people buying and financing crypto? This new area in our society has the potential to revolutionise how we operate our banking and transfer money, how we will pay for produce and how the internet is reconstructed. PC: The Pros and The Cons Issues surrounding cryptocurrencies and the legal hemisphere are the frequent occurrences of fraud. In January of this year, hackers stole non-fungible tokens (NFTs), valued at $2.2 million from New York art collector Todd Kramer. The following month at OpenSea, the world’s biggest NFT market, approximately $1.7 million worth of NFTs were stolen. These incidents have created a slump in the number of people buying and selling NFTs. These fraudulent occurrences have impacted the virtual trading world, with trading on OpenSea decreasing by 80 per cent in March. Cryptocurrency is undetectable. If someone steals your currency, you will not be able to find it. There are no laws in place to protect a person against this type of fraud or theft. These scams create uncertainties for people to adapt to this modern currency. Additionally, mainstream media influencers can have an impact on the crypto market. Economist Nouriel Roubini accused Elon Musk of market manipulation. In February 2021, Musk’s company, Tesla, purchased $1.5 billion in Bitcoin. Roubini stated that Musk used his Twitter platform to inflate prices in Tesla’s favour,
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and called on the US Securities and Exchange Commission to investigate the matter. Cryptocurrency also houses many benefits. It ensures easier transactions. Using a simple application, hardware wallet or exchange wallet, anyone can transfer and receive cryptocurrency. Furthermore, this industry has one of the fastest growing markets in the world. In 2013, the total market cap of cryptocurrency was around $1.6 billion. As of 2021, this figure increased to $1.4 trillion. NFT: Novelty for Technology Non-fungible tokens (NFTs) were relatively unknown outside of small internet strongholds until 2021. They are a strange concept that bewilders the wider public, not least the legal hemisphere. Unlike cash, which is interchangeable, each NFT is one of a kind. Each one possesses a unique asset built on a blockchain that comes with the right to use it. NFTs come in various forms: photographs, animation, videos, memes, and tweets. In October 2021, Twitter user Lauren Walker mockingly tweeted her dismissal of NFTs. Ironically, this tweet was minted and listed for auction on OpenSea at a value of $5,000. Their value is encrypted in their uniqueness. NFTs can also represent real life assets. They can be distributed as certificates of authenticity. The European Commission’s draft of the Markets in Crypto-Assets Regulation (MiCA) was first proposed in 2018. It aimed to provide support to anti-money laundering rules, as well as enhance financial stability and investor protection in EU member states. This proposal could be construed to manage and regulate particular NFT market activities. Currently, it is arbitrary as to how member states would regulate the scope of cryptocurrencies. Law in Ireland Virtual asset service providers (VASPs) that are operating within Irish shores must adhere to the guidelines of the Anti-Money Laundering and Countering the Financing of Terrorism framework, as provided for by the Central Bank. These guidelines aim to assist credit and financial institutions in observing their obligations. In 2019, the Irish Government issued a paper titled “International Financial Services Strategy 2025.” This document outlines its commitment to develop Ireland as a global leader in the financial sphere, as well as announcing measures to illustrate Ireland’s qualifications as an EU centre of excellence for distributed ledger technology (DLT). For a number of years, the Industrial Development Authority (IDA) has worked with the Irish Blockchain Expert Group on the “Blockchain Ireland” initiative. They aim to enhance the blockchain trade within Ireland. The Irish Government is perceived to be welcoming of further developments in this virtual world of cryptocurrency. Yet, can these virtual institutions obey these same rules and existing legislation, or does further legislation need to be implemented in Ireland? These cryptocurrencies are non-traceable. The formulation of legislation would provide substantial challenges for the Oireachtas.
How is a fraudster or thief held accountable for their actions if their digital fingerprint is untraceable? There is currently no prohibition on cryptocurrencies in Ireland. However, there has been no regulatory regime implemented either. Ireland implements certain EU Single Market Directives, such as the Electronic Money Directive 2009/110/EU or the Market Abuse Regulation 506/2014/EU. These legal frameworks were designed to maintain an adequate level of supervision over the financial market. These regulations provide examples for
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MiCA to aspire to, regarding the regulation of cryptocurrency. Until the EU’s MiCA regulation is implemented, cryptocurrency will be unregulated. It is undeniable that cryptocurrencies will become increasingly common in our society. Therefore, legislation would have to be constructed carefully to fulfil their unique character and obligations. An Teanga agus Trasdul An féidir lenár rialtas criptea-airgeadra a úsáid mar bhealach chun an Ghaeilge a spreagadh agus níos mó daoine a mhealladh chun an teanga a labhairt? Níl aon amhras go bhfuil tuairim na coitiantachta i measc na hóige ag tacú leis an teanga a labhairt , chomh maith le húsáid an airgeadra samhalta. Rinne Ireland Thinks/ The Good Information Project suirbhé ar an teanga. Foghlaimíodh go gceapann 65 faoin gcéad de dhaoine gur cheart dúinn níos mó Gaeilge a úsáid go laethúil. De réir an suirbhé seo, b’iad an aoisghrúpa 18-24 an scata leis an chaighdeán is airde líofachta. Mar sin de, dá mbeadh criptea-airgeadra cruthaithe go hiomlán trí mheán na Gaeilge, an mbeadh aistriú níos míne den airgeadra inár spás airgeadais agus spás dlíthiúil? Can our government utilise cryptocurrency as a method of promoting the Irish language? The Irish language is becoming increasingly popular with young people, as is the use of virtual financial currency. Ireland Thinks/ The Good Information Project undertook a survey on the language. They found out that 65 per cent of people think we should use more of the language in our everyday lives. This survey also established that the 18-24 age group have the highest percentage of fluency. As a result, could a cryptocurrency entirely through the medium of Irish, result in a smoother transition of this currency into our financial and legal space? Bhí ar TG4 an chéad NFT as Gaeilge a bhaint den suíomh OpenSea. Níor thug an ealaíontóir cead na híomhánna a bhualadh. Dá bharr sin, má chruthófaí NFT nó criptea-airgeadra trí mheán na Gaeilge, beidh sé riachtanach reachtaíocht a chur i bhfeidhm chun cosaint a sholáthar do dhearbhúinéirí, ceannaitheoirí, agus díoltóirí. Tá an réimse mór seo de nadúr neamhrialaithe, agus beidh sé deacair airgeadra samhalta a bhunú. TG4 had to remove the first Irish language NFT from the OpenSea platform. The artist had never given permission for the images to be minted. Therefore, if an NFT or cryptocurrency is to be created through Irish, legislation will need to be implemented for the protection of artists, buyers and sellers. This vast space is of an unregulated nature, and it will be difficult to establish a virtual currency. The Yellow Bit Road The legal ramifications of cryptocurrency are yet to unfold, but it holds promising endeavours and potential. This unwinding road is a novel phenomenon that legislators should address promptly. It is only a matter of time before this virtual world will be engaged with and tackled, bit by bit, by our legislators and court systems.
Photo courtesy of Matthew O’Shea, SS Law and Business
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The Platform Problem and Khan’s ‘Amazon Antitrust’: How we let Big Tech write its own rules By Thomas Heron, SS Law Introduction Lawrence Lessig, a Harvard University academic and attorney, was one of the first internet scholars to suggest that commerce could become the salient force that would come to characterise the internet. In his seminal work, ‘Code and Other Laws of Cyberspace’ (1999), Lessig’s ‘Pathetic Dot’ theory of internet regulation proposed that the law, social norms, the market, and ‘architecture’ were the four forces that would regulate the internet. While all of these would have a part to play, in Lessig’s view it would be commerce, with the help of governments, which would make the internet a place that enabled “an extraordinary kind of control.” The Problem with ‘Big Tech’ Even considering this ominous warning, Lessig probably could not have quite predicted the extreme extent to which history would vindicate him in respect of the third named force: the market. The private sector has dominated cyberspace in much the manner that Lessig thought it might. Nonetheless, it would still take two decades of dizzying levels of internet commercial growth for this to become widely apparent, beginning with the ‘dot.com boom’ in the United States and unto us still in ever more rapidly-changing forms with all the eery possibilities that the nascent ‘Metaverse’ portends. Now, having awoken to the near-intractable dominance of a handful of the ‘Big Tech’ platforms, regulators have begun to understand how difficult it will be to dismantle this “extraordinary control” that has been concentrated among these platforms. This is evidenced by the multitude of regulatory reports and legislative proposals on digital competition problems (EU Crémer Report, US House Antitrust Sub-Committee Report, and UK Furman Report, to name a few) coupled with the Federal Trade Commission’s lawsuit to break up Meta, Facebook’s parent company. The Root of the Digital Markets Problem In the view of this author, there are two predominant reasons that this has happened. The first is that regulators have been unable to apply traditional competition law tools to digital markets, owing mainly to the uniquely challenging characteristics of such markets; traditional competition law devices have been evaded by the platform business model. The second, possibly connected, reason is that government regulators have taken too lax and permissive an approach to the unchecked growth of these companies which operate globally to the strategic benefit of their domicile jurisdiction. A consistent theme across the global regulator reports on this issue is that the largest ‘Big Tech’ companies (Meta [previously ‘Facebook’], Google, Amazon, Apple) can be associated with many of the anti-competitive harms (as well as privacy and personal data protection issues) that are central to the problem of digital markets. But these Big Tech companies have grown in significance across the globe, with globally-operating US firms having the ability to reinforce the US economy’s dominance abroad. This role becomes increasingly important when facing competition from emerging markets. Dobbs, Koller, and Ramaswamy note that deregulation in China has incubated tech and e-commerce firms such as JD.com and Tencent, which rival the size of America’s original Big Tech firms. In the context of intensifying political and economic rivalry, the US has an interest in maintaining its global tech dominance over China, and firms like Google, Amazon, and Facebook contribute greatly to this effort. As some speculators predict the Chinese economy to overtake the US in size as early as 2028, the US’ position becomes even more threatened in this aspect. This is one possible reason for hitherto inactive antitrust regulation in this sector. To the degree that ‘Big Tech’ companies spread globally and assert the technological prowess of their home economy, the US
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government had no apparent incentive for a long time to curtail their growth. In this vein, it is not difficult to see how the question of digital market regulation in the United States occupies a complicated seat between the competing interests of effective digital antitrust enforcement and wider global economic dominance. The Unsuitability of Traditional Market Regulatory Tools Returning to the difficulties with digital markets’ characteristics, owing to years of regulator blindness to these “unique digital features,” traditional competition law tools have been almost entirely outpaced by the data-focused and user-driven business models of internet platforms. Digital markets are ‘dynamic’ in that they often have a ‘winner-takes-all’ nature. This can be caused by ‘network effects,’ which can be either direct, where the more users a platform has, the more users it attracts and the platform becomes more valuable to all sides of the platform. This can create market dominance rapidly, making it impossible for other competitors to catch up and compete with the preference users have for the popular incumbent platform. This means that often the platform actually “becomes the market,” rather than competing on it in a healthily competitive manner. Whereas typically the first enquiry of regulators has been to identify a “relevant product market” in which a business under competition scrutiny operates, the pecuniary and price-focused econometric tests have been confounded by the ‘zero-price’ nature of the markets internet platforms operate in. In both the EU and US for example, antitrust orthodoxy relies heavily on price theory. This focuses on whether consumers are so dependent on a particular business in the market that that business can raise prices more or less free of any fear of competitive constraint from other businesses (this can be calculated by the SSNIP test) is practically inapplicable to ‘free’ services such as search engines and social networks. Of course, the value earned back by these platforms is through the algorithmic processing of user data into highly valuable insights into behaviour which can then be sold on to advertisers to compensate for the lack of user subscription revenue. As yet, traditional competition law tools have not managed to close this loophole. This theme extends even further to the aggressive “killer acquisition” strategies enabled by this data-driven model. US regulation in this area is largely also still articulated in terms of money and price. For example, the Hart-Scott Rodino Antitrust Improvement Act 1976 sets out certain cash and asset value thresholds beyond which merger control notification becomes more stringent, which were increased in 2020. These value thresholds are less satisfactory in digital markets where companies targeted for acquisitions may be rich in data, and other illiquid assets, but poor in cash. Similarly in an EU context, the Apple/Shazam decision by the European Commission is illuminating for the purposes of showing that regulators are limited in their ability to materially consider the long-term effects on privacy and competition in the market of the combination of data troves under the ownership of dominant incumbents who are likely better placed to commercialise it than the target company. The Route to Restoring Competition in Digital Markets Internet companies utilising this business model are far ahead of the regulations meant to harness competitive markets for the good of consumers.
The question of how to regulate this market has been seen as a recent frenzy of mass regulator attention and investigation attempting to answer it. Thematic to most of the mentioned regulator reports is the idea of isolating specific ‘big tech companies’ who have acquired a high level of dominance and imposing mandatory codes of conduct on them to allow them to ‘co-regulate’ their market behaviour. This can be seen in both the EU Crémer and UK Furman reports. This probably denotes a conscious capitulation of these regulators to the most realistic view of these large internet platforms as the real regulators of the ‘markets’ they have internally fostered. In contrast, there is more momentum on the other side of the Atlantic for the government lawsuits seeking to break up Meta into its constituent brands (Facebook, Instagram, WhatsApp, etc), which was given a green light to proceed in Federal
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Court earlier this year. While this attention to the issue is welcome, whichever, if any, of these regulatory ventures will be successful in their attempts is not something that can be predicted at this point in time. But before proceeding too deeply down any of these avenues, all regulators must first understand that the control these few companies have acquired over the flow of information, our social interactions, and the level of access they have to our data mean that what is at stake here is more than just well-functioning markets. The potential for misuse of all of these valuable intangible assets has been well-demonstrated over the last number of years, in particular, by the dissemination of political misinformation via social media, with serious and formative impacts on elections worldwide. In the view of this author, the successful attempts at regulation of digital markets will be those that treat this question with a level of gravity commensurate to these dangers. Conclusion Before any governmental enquiries into digital markets, Lina Khan, the current chairperson of the Federal Trade Commission, was one of the first to raise the alarm regarding this issue in 2017 in her article ‘The Amazon Antitrust Paradox,’ which she wrote when she was a law student at Columbia University. Khan articulated the digital market’s questions as one concerning our wider values as democracies in the digital age. Regardless of what direction regulators take in trying to tackle the question of the digital market, this value-inclusive consideration will be key to avoid becoming and remaining ‘pathetic dots’ in the matrix of digital control. As we cede more and more control over our personal data, time and ultimately our lives to these increasingly-powerful private entities, the regulatory playing field must be rebalanced in favour of the values of accountability, fair competition, and user rights, whatever the regulatory option chosen may be.
Photo courtesy of Grace Given, SS Law and German
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Meta
The Metaverse By Udita Gulati, JS Global Business The Metaverse is a virtual location that allows our physical and digital lives to converge in order to “work, play, relax, transact, and socialize.” The idea is still very fresh and therefore lacks a structured definition. The creation of a well-developed understanding of the Metaverse is still a work in progress and is subject to change based on how the technology advances in the coming years. However, the underlying goal is to enable users to socially interact and complete tasks in an alternate virtual reality. The company formerly known as Facebook is the owner of the three largest social media apps – Facebook, Instagram, and WhatsApp. Its recent rebrand to Meta focuses on the effort to augment reality by creating interconnected virtual communities. This will be facilitated through “headsets, augmented reality glasses, smartphone apps, and other devices.” Mark Zuckerberg firmly believes “AR systems will be ubiquitous within the next decade,” to accommodate avatars teleporting from one experience to another. Meta has already patented technologies that will employ people’s biometric data to construct digital avatars that are as realistic as possible. Examples of these patents include eye-to-face tracking technology using sensors or cameras in headsets to ensure avatars perfectly mirror real-life behaviour. The goal is to keep the technology such as the headsets inexpensive to encourage adoption and then raise revenue in the metaverse itself, using advertising and selling digital goods and services. An example of a company utilizing the Metaverse is Forever 21’s Metaverse branch that users can enter using their own avatar. There are multiple floors for the avatar to browse and purchase digital clothes using virtual currency. Nike has utilized Roblox to develop Nikeland, where customers are greeted by an avatar reincarnation of LeBron James and can then view their digital products. Even Chipotle has become involved with its own virtual restaurant, and awarded its first 30,000 users with a voucher for a real burrito. E-commerce in the Metaverse is shifting even further away from the traditional brick and mortar style of shopping, and has begun to adopt virtual spaces to drive e-commerce by making users attached to their digital selves. In lieu of running physical stores in every city, there could be a shift in the future to large retailers building “a global hub in the Metaverse that is able to serve millions of customers.” This would be attractive to retailers due to lower overheads and the possibility of a high margin e-commerce business. Opportunities to further enhance life using the Metaverse also exist within educational and working environments. For example, a virtual reality world would be a cost-effective means to access training and development programs. In addition, the workforce in low income countries could gain entry to job opportunities in the west without needing to migrate. Moreover, product testing such as experimenting as to how a robotic system will interact with its physical environment could also be conducted at lower costs. Although the concept is still in its research and development stage, if Meta and various other firms meet their Metaverse goals it would drastically transform our means of interaction such that it will shift from being grounded in the physical world to being supplemented by a tenacious digital presence. Facebook’s resources, capabilities, and acquisition of Oculus will allow the firm to become a leader in the development of the Metaverse; however, a major element of the Metaverse is the existence of not one, but multiple virtual worlds that people can transport and jump to and from. Hence, there are “swaths of other big-name brands [joining] the race to build their own–” such as Microsoft focusing on AR efforts on “industrial applications like design, manufacturing, and advertising.” The immersive experience of the Metaverse will be an impressive leap in technology and how people can express themselves and interact with each other. But there are challenges that accompany this advancement.
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Significantly, there could be varying opinions on the social costs of people becoming addicted to living in an alternate virtual reality as a means of escapism from the often-times grim reality of the real world. There are also considerable privacy challenges to consider as companies such as Meta begin to collect biometric data to develop realistic avatars or to sell to advertisers.
The Metaverse will enable the monetisation of deeply personal information such as analysis of where and for how long individuals gaze at certain objects – which is not only disconcerting, but also dangerous from a legal perspective. Technology such as VR glasses, haptic gloves to feel VR objects, 3D cameras, sensors, microphones, etc. will allow companies to mine information on users’ facial expressions, physiological reactions, and make inferences about psychological reactions, process information about the users’ private home environment, and more. Regulations such as the GDPR and UK’s Data Protection Act would need to be updated to ensure that users have “simple ways to exercise their rights.” It will be interesting to see how Meta will convince people to replace their time in the real world with spending it in the Metaverse instead and how it will garner trust from the public while grappling with privacy and political scandals.
Photo courtesy of Pat Gannon, Class of 2020, Film and English Literature
Photo courtesy of Grace Given, SS Law and German
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Review
The Eagle: A Year in Review By Ellen Hyland, Copy Editor, SS Law and Political Science As the grass outside of the Pav becomes invisible due to the swarms of students forgetting about their deadlines for the sake of a few hours with their friends in the sun, it is perhaps time to accept that another academic year is coming to an end. For many, this year has been marked by welcome changes – no longer are we cooped up in our bedrooms pretending that Zoom drinks are the same as a night out, that texts can replace speaking face-to-face, or that college life can be properly replicated online. I first joined The Eagle in September 2020. Sitting at home churning out assignment after assignment like an OSCOLA machine was not fulfilling my need to express myself through writing – I had always loved writing silly stories and poems throughout my childhood and adolescence and immediately hiding them under the bed, writing funny cards for friends’ birthdays, and even writing history essays for my Leaving Certificate (yes, I was that girl). So, when a few people in my class started talking about this legal gazette called The Eagle, which was more conversational, more accessible, and most importantly, more informal than both the essays I had been writing throughout my degree and other law publications, I decided to apply for the editorial board. I thoroughly enjoyed the year I spent on the board, under the amazing leadership of Samantha Tancredi who cannot be given more credit for elevating the paper, and therefore applied for the position of Copy Editor for the year 2021/2022 and won. The articles that I have read and edited over the past year have been incredibly diverse, well-written, accessible, and informative. My area of expertise - The Eagle’s blog – has seen some tremendous pieces of work as authors tackled assorted topics such as stealthing, space law, Peng Shuai’s disappearance, and Polexit. My Grandmother phoned me one day simply to praise Emma Bowie’s piece on the Stardust Fire Inquiries, stating that it was one of the most informative pieces of journalism she had ever read. Indeed, I was always delighted to hear that people read our blog and had opinions on it. A stellar example of this was a piece by Karl Egan published as a response to editorial board member Mark McGrane’s blog post on Irish neutrality. The facilitation of dialogue is always important as the law is not black and white – nuanced conversations can be had with facts to back up both sides on many issues in the legal realm, and we at The Eagle are delighted to promote these conversations. This is not to even mention the issues printed this year. Our first issue really set the tone for the year, with Jacob Hudson’s interview with Ivana Bacik, Antóin Fletcher’s article on the Afghanistan crisis, and Kate Flood’s article on HGV drivers meaning that the issue was as contemporary as it was varied. Our second issue, focusing on access to justice in collaboration with Trinity FLAC, was a huge success with many passionate and well-argued submissions that showed just how broad and important the theme of justice can be. Articles on environmental justice, refugee rights, justice for those in Tuam, and language rights (written in Irish – a first for The Eagle) means that the issue stands as an important testament to the swathes of people in Irish society and the world who are deprived of being treated fairly – something law students would do well to reflect on as they embark on their careers. Our second issue was also ushered in with a launch event on January 25th, which allowed us to meet many on the editorial board in person for the first time. It was a lovely evening in Regent House, with pizza and wine to stimulate chatter about anything and everything under the sun. Our Editor-in-Chief, Matthew O’Shea, gave a speech that night which showed his passion for the paper, something that is so completely transparent if you ever spend any time with him. Our third issue, published on the 11th of March, also showcased some very talented authors, as does the issue being edited as I type this – although somewhat tech illiterate myself (which is partly why I am writing this review piece), it is so fascinating to see how differently people have interpreted
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the theme of technology. None of this year’s feats would have been possible without our sponsors, authors, and especially our editorial board – every single one of you have made The Eagle a success this year, without your edits and feedback to the authors the paper would simply not be able to function. I am also fortunate to have worked with the rest of the executive board. To Zoe, thank you for tolerating me when I admire you for the hundredth time about the stories you put up on our socials, they are some of the most creative and professional things I have ever seen, and you have such an eye for detail. To Kat, thank you for all of the hilarious voice notes you send at 2am explaining your second-round edits which I groggily reply to in the morning, I have never met anyone with your work ethic. To Matthew, thank you for always making the choice of the cover photo for the issues some of the most entertaining conversations I have, your photographic skill (and perfectionism) knows no bounds. Although I am sad to leave the paper and all of its people behind this year as I graduate, I cannot wait to see who takes up the mantle for next year. I may not know exactly what post-college life has in store for me, but I do know that wherever I am, I will be reading The Eagle.
Photo courtesy of Matthew O’Shea, SS Law and Business
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Review
Trinity FLAC: A Year in Review By Georgia Dillon, Secretary of Trinity FLAC, JS Law Trinity FLAC is the Trinity College Dublin branch of the Free Legal Advice Centre. The society seeks to advance and promote the principles of social justice and human rights on and off campus through offering free legal advice and raising awareness of social justice issues in our local and global communities. At the heart of FLAC lies the belief that every human being deserves dignity and respect. We started this year with a change to our Constitution to allow for the recruitment of two Deputy Legal Research Officers, Patricia and Rebecca, who joined our Legal Research Officer Hugh to produce two research projects this year. The first, Disability Rights: A Research Report By Trinity FLAC, was shortlisted for best publication at this year’s CSC Awards. The second research project, Gendered Issues in Irish Law and Policy, is well underway and explores a number of pressing issues, from feminist approaches to legal decision-making, to period poverty, to parental and reproductive health leave. Our Free Legal Advice Clinics continued over the phone this year. They took place every Tuesday of the academic year and allowed staff and students to avail of free legal advice from a qualified legal practitioner from A&L Goodbody. These clinics are at the heart of what we do at Trinity FLAC, promoting access to justice for all, and were run by our Clinics Officer Isobel, who returned this year for her second stint in this position. Isobel handled the transition from in-person clinics to phone clinics wonderfully and enabled dozens of people to receive free legal advice. We hosted a number of panel discussions this year, both online and in person. We were delighted to continue our YouTube Speaker Series following the return to in-person events, as we received feedback that they have been helpful for students working on research and assignments. We continued to platform a number of advocates and experts speaking on issues of social justice, including Chairperson of Safeguarding Ireland Patricia Rickard Clarke, Professor Patricia Brazil and Finn Keyes, who kindly gave their time to speak to us about wardship in Ireland and the need for reform in this system. Our Speaker Series continued with a Civil Legal Aid Review with Christopher McCann and Professor Gerard Whyte, and a discussion on prisoners’ rights with Ciara Kirrane and Mary Rogan. We also hosted a number of live online events, including our annual ‘Alternative Careers in Law’ Event. At this talk, we heard from a number of speakers who pursued careers outside the traditional corporate law route, from academics to CEOs of NGOs. We offered a number of workshops including a tenants’ rights workshop with the Trinity College Dublin Student Union and a Consent Workshop with Dublin Rape Crisis Centre. This year marked the return of our in-person events, including our annual Advocacy Award. This award acknowledges people that FLAC believes has made a significant contribution to the advancement of social justice in Ireland. This year we were honoured to give the award to Independent Trinity Senator Lynn Ruane, who has used her position in the Seanad to advocate for reform in Irish drug policy and the criminal justice system. In conversation with our chairperson Síofra, Senator Ruane shared insights into her time in the Seanad and the adversity she has overcome in her political career. FLAC took part in a number of collaborations with other societies this year. We hosted a talk on the intersection of the ‘Environment, Economics and Law’ with Trinity Law Society, Environmental Society, Student Economic Review and the Students’ Union. We also organised a number of social and fundraising collaborations, including our Freshers’ Week Cable Tie Scavenger Hunt with the Trinity Law Society and The Chase: Law Hacks Edition, where representatives from the Law Society, Trinity College Law Review and The Eagle faced off against law students in a game hosted by our lovely Hilary Term Moot Officer, Jules. This event
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raised money for Peter McVerry, a charity FLAC has been honoured to fundraise for over the past number of years. We also hosted a Christmas Pub Quiz with the Trinity Voluntary Tuition Programme to get us all into the festive spirit. After over a year of hosting online events, it was so wonderful to be able to meet and collaborate with student societies across a number of different disciplines. We continued to hold our annual moot court competitions. The Conor Ringland Memorial Moot took place online during the first semester, with a number of our Junior and Senior Freshman members battling it out to win first prize. Our Karen Kenny Memorial Moot is currently underway, with a number of Sophister teams competing to win an opportunity to intern with the Community Law and Mediation Centre. It has been so wonderful to watch our members showcase their oral advocacy skills over this past year. All in all, this has been a big year for Trinity FLAC as we have adapted to the new normal of online, in-person, and hybrid events. We are so grateful to all of our members for participating in our research projects, moot court competitions and attending our panel discussions and social events. We are also so appreciative of all of our committee members who have worked tirelessly to bring our events to you this year!
Photo courtesy of Matthew O’Shea, SS Law and Business
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Review
DU Law Society: A Year in Review By Ruth Brady, Secretary of DU Law Society, JS Law and Political Science Before the year even began the Law Society hit the ground running when we invited Mr Patrick Dempsey to Trinity to accept the Praeses Elit award. This was the beginning of a fantastic session for the Law Society. Each and every area of the society excelled beyond expectations. The Competitions team ran an array of immensely successful events. This included a mock trial with more sign ups than ever before and an intervarsity competition which saw Cambridge visit Trinity. These events are vital to our members who want to gain experience in advocacy, public speaking and problem solving. In particular, social events were welcomed back to LawSoc this year by the fantastic members. Masquerave was a smash hit, taking place ON freedom day, when restrictions were first lifted. And this was only the beginning. Frequent freshers clubs, the return of Law Ball and, most lately, Swing Ball also made for a jam-packed social schedule. The Speakers’ Series broke records, inviting more guests than ever before. With nineteen speakers, including three panel discussions and the launch of a brand new award - the Alli Proelio award - speakers were a highlight for all members this year. Some guests such as Mr Steven Schleicher, who was one of three prosecutors in the George Floyd case, or Jean Claude Juncker, President of the European Commission, advanced our discourse on legal isues. Other guests, including Vogue Williams and Laura Whitmore, broadened the perspective of members (and draw an eager crowd!). It cannot go unsaid that Trinity Outreach Day, hosted by the incredible outreach team, was a fantastic event which will be sure to continue annually. With 10 participating DEIS schools and over 60 lessons provided to the schools over the course of the academic year. On Outreach Day itself, 40 students from participating schools got a campus toure and an opportunity to compete in a mock trial. Over €12,600 was raised by the Charities Team for Dublin Rape Crisis Centre, our chosen charity this year. Thanks to some incredible events including a neon party and law day events including five a side and bucket collecting. What a year it was for the 88th session.
Photo courtesy of Matthew O’Shea, SS Law and Business
