Under the phrase “code is law” and based on its “trustless trust”, blockchain has emerged as a disrupting technology considered by some as an alternative to the law. Based on a study of real-life blockchain-based decentralised applications (Dapps), this article takes blockchain developers at their word and adopts the point of view of users: can blockchain live up to its promise and enable them to transact with each other without the need for the trust granted by the law? The article particularly highlights that users need to be able to ascertain that a self-advertised Dapp indeed qualifies as one. Blockchain technology may make it possible to do away with trust in third parties, but this is not enough. Users also need to trust that an alleged Dapp genuinely is one, and blockchain alone cannot provide this. Beyond Dapps, it is argued that blockchain needs the complementary role of the law to deliver its promises and especially to authenticate blockchain “virtues”. The EU certification mark is identified as a promising form of co-regulation for that purpose.
The article discusses the concept of infrastructure in the digital environment, through a study of three data sharing legal regimes: the Public Sector Information Directive (PSI Directive), the discussions on in-vehicle data governance and the freshly adopted data sharing legal regime in the Electricity Directive. While aiming to contribute to the scholarship on data governance, the article deliberately focuses on network industries. Characterised by the existence of physical infrastructure, they have a special relationship to digitisation and ‘platformisation’ and are exposed to specific risks. Adopting an explanatory methodology, the article exposes that these regimes are based on two close but different sources of inspiration, yet intertwined and left unclear. By targeting entities deemed ‘monopolist’ with regard to the data they create and hold, data sharing obligations are inspired from competition law and especially the essential facility doctrine. On the other hand, beneficiaries appear to include both operators in related markets needing data to conduct their business (except for the PSI Directive), and third parties at large to foster innovation. The latter rationale illustrates what is called here a purposive view of data as infrastructure. The underlying understanding of ‘raw’ data (management) as infrastructure for all to use may run counter the ability for the regulated entities to get a fair remuneration for ‘their’ data. Finally, the article pleads for more granularity when mandating data sharing obligations depending upon the purpose. Shifting away from a ‘one-size-fits-all’ solution, the regulation of data could also extend to the ensuing context-specific data governance regime, subject to further research.
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