Frontmatter

Frontmatter

Privacy Within the Private Order: A Critical Evaluation of the Market-Based System Governing Data Collection in the United States

This paper critically evaluates the market-based system governing data collection in the United States. The discussion is centred around Big Tech, a group of information intermediaries responsible for the ongoing extraction and exploitation of consumer data. The exploitative system is enabled by the ubiquitous privacy policy, which ostensibly offers data subjects ‘notice’ of data collection and the ‘choice’ to consent to said collection. This paper critiques the ‘notice and choice’ model, concluding the combined ambiguity and opacity of the privacy policy fail to offer subjects meaningful control over their data. To substantiate this argument, the paper evaluates the suitability of the market-based system in a broader sense, arguing that data collection practices precludes the knowledge parity necessary for an operative and fair market-based system. The paper concludes by ascertaining the suitability of state-based regulation, identifying data’s intrinsic relationship with ideals that are core to the Western tradition: equality, democracy, and autonomy.

Foreword

Foreword

The Case for Express Compulsory Mediation in England and Wales

The current official position on compulsory mediation in England and Wales is that the courts do not have the power to compel parties to mediate but can impose cost sanctions on parties who unreasonably refuse to mediate. Nevertheless, the courts in England and Wales have ordered parties to mediate. Additionally, the courts’ application of the Halsey factors in deciding when a party’s refusal to mediate will be deemed unreasonable, has arguably created a body of divergent case law. This article argues that mediation should be made compulsory for civil disputes in England and Wales to remedy the existing state of uncertainty.

Online Courts: Bridging the Gap Between Access and Justice

This article analyses the introduction of online court proceedings through the prism of access to justice. It distinguishes between the two major recent developments in terms of justice and court accessibility – ie the institutionalisation of alternative dispute resolution mechanisms and the expansion of online dispute resolution within public courts. Whilst both movements appear to be driven by similar theoretical forces, the practical adoption of fully online judicial proceedings constitutes a step towards a different direction, opening up new opportunities for attenuating the apparently intrinsic efficiency-fairness trade-off. Due to the unique features of digital technology, the emergence of state-provided online courts and tribunals for the resolution of minor civil disputes could significantly improve the efficiency of formal adversarial litigation processes, without the risk of sacrificing proper procedural protections. Overall, this article advocates that the balanced combination offered by online court systems, albeit not a panacea, may be translated into a potential enhancement of both ‘access’ and ‘justice’.

Preface

Preface

Big Data and the Essential Facilities Doctrine: A Law and Economics Approach to Fostering Competition and Innovation in Creative Industries

This article examines the growing market power of global streaming services in creative industries for video and music, and the intellectual property investments and inputs in these services. The author considers the prevalence of big data in these industries, enabling the development of highly targeted content, thereby dramatically reducing the potential of failure and mitigating the cost of investment. The author examined the suitability of traditional intellectual property laws for creative works driven largely by data inputs. The possibility of utilising the essential facilities doctrine to impose a duty to licence on these undertakings and the impact that could have on competition, innovation, incentives, and the economic functioning of creative industries is explored.