Increasing regulatory and doctrinal attention has recently focused on the problem of 'platform power'. Yet calls for regulation of online platforms fail to identify the problems such regulation would target, and as a result appear to lack merit. In this paper, two claims are advanced. First, that the concept of 'platform power' is both an under and over-inclusive regulatory target and, as such, should be replaced by the broader concept of a 'digital gatekeeper'. Second, that existing legal mechanisms do not adequately reflect the power over information flows and individual behaviour that gatekeepers can exercise. In particular, this gatekeeper power can have implications for individual rights that competition law and economic regulation are not designed to capture. Moreover, the technological design, and complexity, of digital gatekeepers renders their operations impervious to scrutiny by individual users, thereby exacerbating these potential implications.
Article 8 of the EU Charter of Fundamental Rights sets out a right to data protection which sits alongside, and in addition to, the established right to privacy in the Charter. The Charter's inclusion of an independent right to data protection differentiates it from other international human rights documents which treat data protection as a subset of the right to privacy. Its introduction and its relationship with the established right to privacy merit an explanation. This paper explores the relationship between the rights to data protection and privacy. It demonstrates that, to date, the Court of Justice of the European Union (CJEU) has consistently conflated the two rights. However, based on a comparison between the scope of the two rights as well as the protection they offer to individuals whose personal data are processed, it claims that the two rights are distinct. It argues that the right to data protection provides individuals with more rights over more types of data than the right to privacy. It suggests that the enhanced control over personal data provided by the right to data protection serves two purposes: first, it proactively promotes individual personality rights which are threatened by personal data processing and, second, it reduces the power and information asymmetries between individuals and those who process their data. For these reasons, this paper suggests that there ought to be explicit judicial recognition of the distinction between the two rights.
The power exercised by technology companies is attracting the attention of policymakers, regulatory bodies and the general public. This power can be categorized in several ways, ranging from the “soft power” of technology companies to influence public policy agendas to the “market power” they may wield to exclude equally efficient competitors from the marketplace. This Article is concerned with the “data power” exercised by technology companies occupying strategic positions in the digital ecosystem. This data power is a multifaceted power that may overlap with economic (market) power but primarily entails the power to profile and the power to influence opinion formation. While the current legal framework for data protection and privacy in the EU imposes constraints on personal data processing by technology companies, it ostensibly does so without regard to whether or not they have “data power.” This Article probes this assumption. It argues that although this legal framework does not explicitly impose additional legal responsibilities on entities with “data power,” it provides a clear normative indication to do so. The volume and variety of data and the reach of data-processing operations seem to be relevant when assessing both the extent of obligations on technology companies and the impact of data processing on individual rights. The Article suggests that this finding provides the normative foundation for the imposition of a “special responsibility” on such firms, analogous to the “special responsibility” imposed by competition law on dominant companies with market power. What such a “special responsibility” might entail in practice will be briefly outlined and relevant questions for future research will be identified.
This Article introduces our Special Issue by posing a central question: What is the added value of the increasing prominence of the concept of the "essence" of fundamental rights in EU law? It will address this larger question in four steps: First, by examining the function of the concept in EU law and the methods for its derivation; second, by summarizing how its application diverges across EU-and international-law; third, by outlining some enduring difficulties with the essence concept; and finally, by reflecting on its future role in EU law, including its impact on other sites of legal authority-such as domestic fundamental rights, the political institutions of the EU, and international human rights law. As the other articles of this issue demonstrate, while there is not yet a coherent approach to deriving and understanding the essence of rights across the fundamental rights the EU must protects, the essence concept plays an increasingly significant role in demarcating the boundaries between the EU's legal and political orders and between overlapping sites of legal authority. Recent developments-such as the rule of law "crises"-are likely to further amplify the importance of "essence" to EU law practice and scholarship.
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