Balancing Scenarios

2020 ◽  
pp. 331-389
Author(s):  
Jef Ausloos
Keyword(s):  
At Risk ◽  
Information Processing ◽  
Public Interest ◽  
General Rule ◽  
Case Law ◽  
Third Parties ◽  
Common Interest ◽  
Policy Documents ◽  
The Public ◽  
Data Subject

Having defined the mechanics of (GDPR) balancing in Chapter 5, this chapter explores three concrete balancing scenarios. The three scenarios are selected based on their prevalence in the information society services (ISS) context, and on the different types of entities they generally represent: (a) commercial interests, mainly relating to the ISS provider; (b) information freedoms, mainly relating to third parties such as users of the ISS provider; and (c) research and security interests, mainly representing a shared or common interest. It appears from a combined reading of the GDPR, policy documents, and CJEU case law that as a general rule, commercial interests cannot trump data subjects’ interests when exercising their right to erasure or to object. When these rights affect the information freedoms of third parties, the GDPR requires powerful ISS providers to take up their responsibility, but only insofar as they actually control the respective information processing operations. In order for research interests to be able to override data subject rights, it will generally have to be carried out in the public interest and severely hampered by anonymization. With regard to security interests, finally, the processing will have to be strictly necessary, effective, and proportionate. Overall, this chapter clearly demonstrates how fair balancing is an inherently open-ended legal exercise. The GDPR tries to provide some structure, inter alia by setting clear defaults in favour of different rights, freedoms or interests that might be particularly at risk in certain situations.

Uniform Defamation Laws in Australia: Moving towards a More ‘Reasonable’ Privilege?

2011 ◽  
Vol 138 (1) ◽  
pp. 9-20
Author(s):  
Rhonda Breit
Keyword(s):  
Mass Media ◽  
Public Interest ◽  
Case Law ◽  
Current Approach ◽  
The Public

A new uniform defamation regime now operates in Australia. This article canvasses the Uniform Defamation Laws (UDLs), focusing on the defence of qualified privilege and its capacity to protect mass media publications in the public interest. Drawing on case law and analysis of the key approaches to statutory privilege, the article evaluates the current approach to statutory qualified privilege. Taking account of observations in O'Hara v Sims (2008, 2009) about the operation of qualified privilege, it questions whether the UDL statutory qualified privilege will ultimately censor publications in the public interest and restrict the application of the qualified privilege defence.

scholarly journals In the name of the public: Representatives of collective and wider interest of the public in administrative matters in Serbia

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 504-531
Author(s):  
Jelena Jerinić
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Legal Framework ◽  
Interested Party ◽  
The Public ◽  
Administrative Procedure ◽  
Active Approach ◽  
Legal Provisions ◽  
Direct Indication ◽  
Administrative Procedures

Serbian Law on General Administrative Procedure (LGAP) opened a possibility for broadening the standing in administrative procedures and administrative disputes, by inclusion of subjects representing collective interests and interest of the wider public - primarily, citizen associations and similar organizations. However, by failing to regulate a series of concrete issues, the Law places the administration and the Administrative Court before a challenge, demanding from them an extensive interpretation of not only LGAP's provisions, but other legislation already recognizing such organizations as AIDS in realization of the public interest. The author analyzes relevant legislation, as well as available administrative and court caselaw in search of these answers. The lack of explicit legal provisions could be balanced by a creative approach in practice, especially by the Administrative Court. Having in mind comparative solutions, the question arises whether it is necessary to regulate this category of potential parties separately or to link it more explicitly to the already existing notion of an interested party. Instead, completely new notions have been introduced - collective interests and the wider interests of the public - which are not or not consistently defined in Serbian law. The current, not so voluminous case law, shows that the administrative bodies need a more direct indication of the rules, i.e. a more explicit definitions of these terms. However, despite the restrictive legal framework, administrative bodies should be open to understanding the specific circumstances, i.e. the motivation that an organization has when it seeks standing. In the normative sphere, one of the solutions could be to envisage the analogous application of LGAP's provisions on the interested party. Other solutions could be sought in explicitly mentioning them in the provisions on right to appeal. The current formulations of LGAP do not provide sufficient guidance to the administration and an extensive interpretation would be a great challenge for them. An active approach of the Administrative Court could show the way for the administration toward and effective application of these provisions of LGAP.

Administrative Contracts in Serbian Law – Specificities of the New Statutory Regime

2020 ◽  
Vol 45 (1) ◽  
pp. 1-35 ◽  
Author(s):  
Marija Karanikić Mirić ◽  
Tatjana Jevremović Petrović
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Practical Experience ◽  
The Public ◽  
Administrative Procedure ◽  
Public Purpose ◽  
General Rules ◽  
Rules And Principles ◽  
Private Entity ◽  
Definition Of

The subject of this paper is the special legal regime for administrative contracts under the recently enacted Serbian Law on General Administrative Procedure of 2016. We offer a comprehensive analysis of the new statutory rules, and examine their relationship to the general rules and principles of Serbian contract law. In addition, we identify the main shortcomings of the new regime, especially in the context of the lack of any statutory, scholarly and judicial typology of administrative contracts in Serbia. Furthermore, we highlight the lack of references to the notions of public interest, public purpose or public needs in the statutory definition of administrative contracts. This is cause for concern, since only the need to protect the public interest could justify the new statutory provisions, which significantly improve the contractual position of a public body as a contracting party in relation to the position of a private entity as the other party in administrative contracts. There is as yet no case law pertaining to administrative contracts in Serbia. This is why we turn to practical experience in the Croatian legal system, which is sufficiently similar and historically connected to Serbia via a shared Yugoslav heritage. We also consider German and French legal models, since they traditionally serve as comparative points of reference for Serbian legal scholars, judges and law makers.

Conditions of the Right to Erasure

2020 ◽  
pp. 196-274
Author(s):  
Jef Ausloos
Keyword(s):  
Public Interest ◽  
Freedom Of Expression ◽  
Personal Data ◽  
Historical Research ◽  
Legal Obligation ◽  
The Public ◽  
The Third ◽  
Legal Provisions ◽  
The Right ◽  
Data Subject

This chapter zooms in on Article 17 GDPR, on the right to erasure (‘right to be forgotten’). It meticulously dissects the three paragraphs of this provision. The first paragraph lists six rights-to-erasure triggers which can be summarized as: (a) purpose expiration; (b) withdrawal of consent; (c) right to object; (d) unlawful processing; (e) legal obligation; and (f) withdrawal of consent by minors in the online environment. The second paragraph comprises an odd extension of the right to erasure, enabling data subjects to request that controllers who have made the personal data public, communicate potential erasure to anyone else processing that same personal data. The third paragraph lists five exemptions to the right to erasure, summarized as: (a) freedom of expression and information; (b) legal obligation or task carried out in the public interest or official authority; (c) public interest in the area of public health; (d) public interest archiving, scientific and historical research, or statistical purposes; and (e) legal claims. What becomes clear right away is how both the right-to-erasure’s triggers and exemptions all refer to other legal provisions in and outside the GDPR. As such, the right to erasure can be seen as a central hub in the GDPR, bringing together key data protection principles from the perspective of data subject empowerment.

Article 19 Notification obligation regarding rectification or erasure of personal data or restriction of processing

2020 ◽  
Author(s):  
Gloria González Fuster
Keyword(s):  
Public Interest ◽  
Personal Data ◽  
Historical Research ◽  
Information Communication ◽  
The Public ◽  
Right To Be Forgotten ◽  
Definition Of ◽  
Data Subject

Article 4(9) (Definition of ‘recipient’); Article 12 (Transparent information, communication and modalities for the exercise of the rights of the data subject); Article 16 (Right to rectification), Article 17(1) (Right to erasure (‘right to be forgotten’)); Article 18 (Right to restriction of processing); Article 58(2)(g) (Powers of supervisory authorities); Article 89(3) (Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes).

The Crisis over the Imia Rocks and the Aegean Sea Regime: International Law as a Language of Common Interest

1997 ◽  
Vol 12 (4) ◽  
pp. 427-446 ◽  
Author(s):  
Evangelos Raftopoulos
Keyword(s):  
International Law ◽  
Public Interest ◽  
Aegean Sea ◽  
Common Interest ◽  
Peace Treaty ◽  
The Public ◽  
Territorial Sovereignty ◽  
Abstract Notion ◽  
Pragmatic Dimension

AbstractSovereignty is a concept of international public interest. In the case of the Imia Rocks, the public interest nature of territorial sovereignty may be found in the undisputed treaty delimitation of the archipelagic entity of the Dodecanese Islands between Italy and Turkey, 1932, and the Peace Treaty of Paris, 1947. Turkey's subsequent conduct, its signature without reservation of the Helsinki Final Act and its claim for the bilateralisation of the Aegean Sea Dispute Agenda on the basis of a geo-political equity are all evidence of the acceptance of the delimitation regime of the Aegean Sea. The public interest regime of the LOS Convention makes questionable Turkey's recourse to the abstract notion of a "semi-enclosed" sea and provides the basis for understanding the pragmatic dimension of the Imia Rocks crisis in the light of the protection and promotion of international common interest.

scholarly journals The Preliminary Injunction Standard: Understanding the Public Interest Factor

2019 ◽  
pp. 939
Author(s):  
M Moore
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Federal Courts ◽  
The Public ◽  
Injunctive Relief ◽  
Preliminary Injunction

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, and the scope of injunctive relief. By centering the public interest factor on these three aspects, courts and litigants will achieve a unified conception of the public interest factor.

scholarly journals Must We Protect Foreign Investors?

2018 ◽  
Vol 5 (2) ◽  
pp. 205-225 ◽  
Author(s):  
Johannes Kniess
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
General Rule ◽  
Prima Facie ◽  
Moral Rights ◽  
Foreign Investors ◽  
The Public ◽  
Investment Protection ◽  
Socially Disadvantaged ◽  
Trade And Investment

Abstract Investment protection clauses, and the investor-state dispute settlement (ISDS) mechanisms they enable, have become a common feature of international agreements on trade and investment. Intended to promote foreign investment, these protections may also discourage governments from regulating in the public interest. This raises challenging normative questions about the rights of investors and distributive justice. In this paper, I argue that a global investment regime that disadvantages developing countries and socially disadvantaged groups is prima facie unfair. This conclusion must be defended against the claim that investors have certain independent moral rights to have their property protected, regardless of the distributive consequences. Granting the premise that such investor rights exist, I argue that these cannot plausibly ground a general rule against public interest regulation that undermines the value of property. I conclude that even if foreign investors have rights that must be safeguarded, the current investment regime must be reformed.

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

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