European Review of Private Law最新文献

{"title":"Google Spain from the Perspective of the ECtHR: Balancing Human Rights in the Digital Age","authors":"L. V. D. Meulen, Joshua Isaac Bishay, Pita Klaassen, Linde C.H.M.Verhoeven","doi":"10.54648/erpl2022017","DOIUrl":"https://doi.org/10.54648/erpl2022017","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48686310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Right to Be Forgotten in the UK: A Case Note on the English and Welsh High Court Reasoning in NT1 & NT2 v. Google and the Post-Brexit Prospects in the GDPR era","authors":"Eva Pander Maat, D. V. Maurik, Rosario Garza Islas, G. Piscitelli","doi":"10.54648/erpl2022014","DOIUrl":"https://doi.org/10.54648/erpl2022014","url":null,"abstract":"The joined cases NT1 & NT2 present the first claim before the High Court of England and Wales (the Court) on the right to be forgotten, established by the Court of Justice of the European Union (CJEU) in the seminal Google Spain case. Both claimants, NT1 and NT2, had submitted a request for the de-listing of search results related to their prior criminal convictions. This case note considers how the Court was therefore faced with the question how to strike a balance between, on the one hand, the right to privacy, and, on the other hand, the publicity of criminal trials. In deciding upon this question, the Court notably weighed both EU and national law sources. It considered three main criteria: the nature of the offence, the public interest in the disclosure of the information concerned, and the rehabilitation of the claimant. This case note argues that the opposing conclusions reached in either of the joined cases are exemplary of the way these three criteria are embedded in the broader common law understanding of privacy and the concept of rehabilitation after criminal convictions. As regards the first criterion, on the nature of the offence, the joined cases suggest that if the offence does not involve dishonesty or is old and ‘not serious’, there is a greater chance that the Court does not consider it necessary for the information to remain public. As regards second criterion, on the public interest, it appears that if the claimant is active in public life in a manner related to the offences, this enhances the public interest in the information. Regarding the third criterion, on rehabilitation, it appears that the Court attaches great value to the concept of remorse for past convictions. The case note embeds these judicial considerations in the emphasis on ‘privileged principles of open justice’ in the English and Welsh common law jurisdiction, which have inhibited the post-war revolt to develop a strong right to privacy in civil law jurisdictions on the European continent. Finally, the case note reflects on post-Brexit data protection standards in England and Wales. Whilst assessing that courts will not be able to easily dismiss the relevance of CJEU case law on data protection, the case note identifies several stumbling blocks to lasting EU-UK equivalence on data protection laws and concludes that if anything, Brexit will diminish legal certainty for citizens and data subjects in England and Wales.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42546221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Right to Be Forgotten in Germany","authors":"Jan Smits Van Oyen, M. Lange, Solveig Kreinsen","doi":"10.54648/erpl2022015","DOIUrl":"https://doi.org/10.54648/erpl2022015","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42409674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction to the Case Note on the Right to Be Forgotten","authors":"J. Emaus","doi":"10.54648/erpl2022012","DOIUrl":"https://doi.org/10.54648/erpl2022012","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41994308","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Editorial: Das Recht auf Vergessenwerden","authors":"A. Janssen","doi":"10.54648/erpl2022010","DOIUrl":"https://doi.org/10.54648/erpl2022010","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45556008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Smart Property and Smart Contracts Under Spanish Law in the European Context","authors":"Cristina Argelich Comelles","doi":"10.54648/erpl2022011","DOIUrl":"https://doi.org/10.54648/erpl2022011","url":null,"abstract":"This article analyses the civil and registry implementation of smart property in real estate in Spain from a European perspective. To this end, a general theory is developed for smart property in real estate and transactional smart contracts, paying particular attention to remedies and property acquisition. Based on the remedies suggested by Nick Szabo in his formulation of smart contracts and smart property, such as the smart lien and the property club, other remedies adapted to our Law will be proposed, due to the ineffectiveness of Szabo’s remedies in the Spanish context. In this regard, attention will be paid to the types of acquisition of real rights, the validity and effectiveness of transactional smart contracts, the remedies for breach of contract, and the modifications to registration that these remedies require. Smart real estate requires the tokenization of property and the linking of the digital asset with the real asset. For this purpose, the functions of tokens and the remote control of real estate, the tokenization of real tradition, and the implementation of property technology (PropTech), in particular, the Internet of Things, will be addressed. Finally, blockchainization of the registry will be examined from the perspective of the Land Registry Interconnection and the Interoperability Model for Land Registers (IMOLA) platform in the EU and Alastria Blockchain Ecosystem in Spain, as well as its legal adaptations regarding registry qualification and registry effects in terms of adverse possession.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47828338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Thoughts on Martijn W. Hesselink’s, Justifying Contract in Europe, Political Philosophies of European Contract Law","authors":"H. Micklitz","doi":"10.54648/erpl2022018","DOIUrl":"https://doi.org/10.54648/erpl2022018","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46680807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Google v. CNIL: A Commentary on the Territorial Scope of the Right to Be Forgotten","authors":"Eva Pander Maat","doi":"10.54648/erpl2022013","DOIUrl":"https://doi.org/10.54648/erpl2022013","url":null,"abstract":"This case note reflects on the question of the territorial scope of the right to be forgotten (RTBF). This question was addressed by the European Court of Justice (ECJ) in the recent Google v. Commission nationale de l’informatique et des libertés (CNIL) case, in which the French Data Protection Authority (DPA) sought to establish the obligation for internet search engines (ISEs) to delist search results in all versions of their search engine. In its September 2019 judgment, the Court did not grant CNIL’s request. However, although EU law does not currently oblige ISEs to delist search results from all versions of their search engine, the Court crucially emphasized that DPAs remain competent to order global delisting. Accordingly, the territorial scope of the RTBF is in principle regional, but may on a case-by-case basis also be national or global where the exercise of balancing fundamental rights so requires. Like the internet, the territorial scope of the RTBF thus appears to be fluid. This case note discusses the Google v. CNIL case from two angles. First, the RTBF entails the exercise of balancing fundamental rights between the right to privacy and the freedom of expression. The RTBF is thereby exemplary of the EU’s privacy-oriented data protection laws, which diverge from more expression-oriented data protection laws outside of the EU. This divergence is concerning for the normative foundation and the feasibility of a global RTBF. Second, the RTBF places a private enforcement obligation upon ISEs, which raises rule of law concerns. Although a global scope is assumed to increase the effectiveness of the RTBF, it would similarly incur an amplification of the existing challenges with its enforcement. This case note establishes that the judgment in the Google v. CNIL case, more so than the January 2019 opinion by Advocate- General Szpunar, actively engages with this complex legal environment and the arguments raised. Notwithstanding this, the disparity between the argumentation of the Court and the AG and the questions left open in the judgment reveal that the territorial scope of the RTBF will remain a contentious topic for many years to come.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43203998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Dutch Perspective on the ‘Right to Be Forgotten’ An Analysis of Dutch Lower Court Judgments in Light of the Hoge Raad Judgment of 24 February 2017 and the Costeja Judgment","authors":"Sits Schreurs, Nena Van Der Kammen, Sofie Oosterhuis","doi":"10.54648/erpl2022016","DOIUrl":"https://doi.org/10.54648/erpl2022016","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42260083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Open Banking: Gordian Legal Knots in the Uncomfortable Cohabitation between the PSD2 and the GDPR","authors":"Federico Ferretti","doi":"10.54648/erpl2022004","DOIUrl":"https://doi.org/10.54648/erpl2022004","url":null,"abstract":"This work analyses problems in the legal framework of Open Banking enabled by the Payment Services Directive 2 (PSD2). It goes through the role of EU law in the regulation of payment services up to their transition towards digitalization and fintech, to show the scale of the changes brought by the PSD2 in a territory unfamiliar to traditional banking. The resulting conflation between banking and the data economy reveal a brand-new market. The normative intersection between the PSD2 and the General Data Protection Regulation (GDPR) expose not only poor coordination but also a growing entanglement of legal knots. The legal inconsistencies, loopholes, and interpretative difficulties are examined to expose operational risks beyond difficulties of legal technicism. A rethinking, or at least a correction, of the European regime of Open Banking is necessary to reconcile the needs of an emerging market and the protection of its users.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49014206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}