European Journal of Law and Technology

Protecting the Vulnerable: from E-Administration to AI Liability

Edoardo Celeste; Abhilash Nair — Sun, 31 Dec 2023 00:00:00 +0000

Fostering Inclusivity for Children with Intellectual Disabilities through Data Protection by Design

Li-Ru Hsu, Simone van der Hof — Sun, 31 Dec 2023 00:00:00 +0000

Children with intellectual disabilities have consistently occupied a marginalised position within the digital landscape. While they might reap benefits from using digital products and services, they are also particularly vulnerable to online risks due to cognitive deficiencies and lower critical literacy skills. As a result, children with intellectual impairments frequently encounter various predicaments, encompassing online sexual solicitation, exposure to inaccurate information and manipulative behavioural designs, as well as various privacy and data protection concerns. Regarding these challenges, utilising data protection by design under Article 25(1) GDPR can play a pivotal role in dismantling certain barriers. This approach allows digital service providers to take children’s evolving capacities into account and implement technical and organisational measures appropriate for their age and developmental stage. The aim of this article is to explore what challenges children with intellectual disabilities might confront in the digital environment and examine how data protection by design can help prevent or mitigate these challenges. Specifically, the article proposes a series of potential measures as the following: (1) presenting information transparently and in a manner accessible to children with intellectual disabilities; (2) crafting an inclusive user interface that enables these children to actively and autonomously engage with the digital environment; (3) integrating interactive assistive tools, such as AI bots, to offer guidance and support; and (4) introducing parental control mechanisms that allow parents to provide assistance in alignment with their children's needs and preferences.

Striking the Balance: Preserving Individuality in the Era of Highly Structured Data Collection in Automated Social Security Case Administration

Lena Enqvist — Sun, 31 Dec 2023 00:00:00 +0000

This article explores the growing role of automation in the administration of social security benefits, focusing on the reliance of automated processes not only on accurate data but also on well-structured data for computational utilisation. It examines the potential impact on claimants’ ability to present their claims and identities, raising concerns about excessive standardisation that could compromise principles of good administration, including the right to be heard, a fair procedure, and the duty of care. Using Swedish examples, the article underscores the importance of balancing automated eligibility assessments with the need to allow claimants to present their cases in free text and to consider low-structured data within automated procedures. It argues for a continuous assessment of the consequences for claimants in developing digital services, emphasising the administration’s responsibility to align with underlying principles and intentions of applicable regulations. Failure to do so may lead to a dehumanised case administration lacking room for meaningful questioning or clarification.

Smart Device Manufacturer Liability and Redress for Third-Party Cyberattack Victims

Iain Nash — Sun, 31 Dec 2023 00:00:00 +0000

Smart devices are used to facilitate cyberattacks against both their users and third parties. While users are generally able to seek redress following a cyberattack via data protection legislation, there is no equivalent pathway available to third-party victims who suffer harm at the hands of a cyberattacker. Given how these cyberattacks are usually conducted by exploiting a publicly known and yet un-remediated bug in the smart device’s code, this lacuna is unreasonable. This paper scrutinises recent judgments from both the Supreme Court of the United Kingdom and the Supreme Court of the Republic of Ireland to ascertain whether these rulings pave the way for third-party victims to pursue negligence claims against the manufacturers of smart devices. From this analysis, a narrow pathway, which outlines how given a limited set of circumstances, a duty of care can be established between the third-party victim and the manufacturer of the smart device is proposed.

The EU AI Liability Directive (AILD): Bridging Information Gaps

Sun, 31 Dec 2023 00:00:00 +0000

The proposed European AI Liability Directive (AILD) is an important step towards closing the ‘liability gap’, i.e., the difficulty in assigning responsibility for harms caused by AI systems. However, if victims are to bring liability claims, they must first have ways of knowing that they have been subject to algorithmic discrimination or other harms caused by AI systems. This ‘information gap’ must be addressed if the AILD is to meet its regulatory objectives. In this article, we argue that the current version of the AILD reduces legal fragmentation but not legal uncertainty; privileges transparency and disclosure of evidence of high-risk systems over knowledge of harm and discrimination; and shifts the burden on the claimant from proving fault to accessing and understanding the evidence provided by the defendant. We conclude by providing four recommendations on how to improve the AILD to address the ‘liability gap’ and the ‘information gap’.