No. 2021, January - December 2021

Index

• ANTI-COMPETITIVE MERGERS IN TWO-SIDED DIGITAL PLATFORM MARKETS
• ARTIFICIAL INTELLIGENCE AND EVIDENCE
• AUTOMATED DOCUMENT ASSEMBLY
• COMPUTATIONAL JURISPRUDENCE
• DATA PROTECTION IMPLICATIONS OF MODERN EMPLOYEE MONITORING SOFTWARE
• DEFENSIBILITY: CHANGING THE WAY ORGANISATIONS APPROACH CYBERSECURITY AND DATA PRIVACY
• DESIGN FOR LEGAL SYSTEMS
• INTRODUCTION
• JUDICIAL DECISION-MAKING AND EXPLAINABLE ARTIFICIAL INTELLIGENCE
• LEGAL AND REGULATORY INTERVENTION IN THE CRYPTOCURRENCY SPACE
• MACHINES ARE TAKING OVER — ARE WE READY?
• PRIVATE AND COMMON PROPERTY RIGHTS IN PERSONAL DATA
• “MOVE FAST AND BREAK THINGS”: LAW, TECHNOLOGY, AND THE PROBLEM OF SPEED
• ANTI-COMPETITIVE MERGERS IN TWO-SIDED DIGITAL PLATFORM MARKETS The Case of Uber–Grab Digital platforms pose a number of challenges to regulators around the world. In particular, markets where digital platforms operate tend towards monopolies due to strong network effects, large economies of scale and scope, close to zero marginal costs and increasing returns to the use of data. On the other hand, ostensibly anti-competitive conduct by traditional businesses may in fact be innocuous or even welfare-enhancing when initiated by digital platforms due to their “two-sided” nature. This article critically evaluates the recent infringement decision of the Competition and Consumer Commission of Singapore regarding Uber's sale of its Southeast Asian business to Grab pursuant to the contemporary law and economics literature on two-sided digital platforms. Unfortunately, “one-sided” competition analysis continues to be erroneously applied to digital platforms with a “two-sided” nature. Some proposals on how mer
• ARTIFICIAL INTELLIGENCE AND EVIDENCE The proliferation and use of artificial intelligence (“AI”) systems that are powered by machine learning (“ML”) to gather and process information means that admitting such evidence will raise issues not only about the admissibility of electronic evidence but also about the limitations inherent in ML. The treatment of the presumption of reliability of computer systems, including AI systems, as a conclusive, legal presumption fails to understand that software systems can produce subtle mistakes that are not obvious. This is compounded by the fact that the non-procedural nature of ML and AI systems amplifies the difficulty of proving or disproving the reliability of AI systems. The fact that ML and AI systems produce results from datasets that contain embedded human assertions also means that the application of the hearsay rule to AI output may be more apposite than previously thought. The authentication of electronic evidence should be subject to a clear procedure to be
• AUTOMATED DOCUMENT ASSEMBLY Access to Justice and Consumer Risk In the world of legal tech, automated document assembly offers economies for commercial entities as well as opportunities to expand access to justice for lower-income individuals and businesses. In particular, automated court document assembly is a major step forward for unrepresented litigants, as its design allows laypersons to access legal content through guided interviews which produce coherent court documents. Automated document assembly systems should therefore be developed, but there are risks to consumers which should be identified and evaluated. Based on a comparison of commercial and non-profit document assembly systems, this article suggests a series of questions to assess consumer risk. Depending on the context, these factors indicate that while some documents from commercial sources raise issues, court document assembly can pose relatively little risk for consumers, because of the non-profit mission of entities that create
• COMPUTATIONAL JURISPRUDENCE The Next Step Forward The application of state-of-the-art artificial intelligence and big data mining to the law has led to a promising area of interdisciplinary research: computational jurisprudence (computational law). By investigating legal relationships and interactions through simulations and modelling, computational jurisprudence has great potential for improving the impartiality and effectiveness of legislative and judicial practices, and aims to uncover the reasoning behind how the legal system works, with legal information transforming it into a real-time online intelligent system. Computational jurisprudence focuses on the latest techniques and laws, involving theories of computational jurisprudence, legislative experiments, judicial prediction, legal semantic mining, legal logic analysis, judicial administrative systems, and judicial evidence.
• DATA PROTECTION IMPLICATIONS OF MODERN EMPLOYEE MONITORING SOFTWARE A wide array of employee monitoring software products has emerged on the market. Employee monitoring software may enable employers to manage their employees more efficiently, and to protect their organisational and business interests more effectively. However, the use of employee monitoring software presents novel data protection issues, which must be addressed in order to secure employees' right to data protection, and avoid breaches of data protection law by employers. This article examines the capabilities of modern employee monitoring software available on the market, and highlights the various data protection issues that may arise from the use of such software. It will also discuss the use of employee monitoring software from a broader policy perspective.
• DEFENSIBILITY: CHANGING THE WAY ORGANISATIONS APPROACH CYBERSECURITY AND DATA PRIVACY The nature and number of online threats faced by organisations have increased to the point where a data breach or cybersecurity incident is inevitable despite an explosion in the number of cybersecurity and data privacy tools on the market today. This article analyses shortcomings in traditional approaches to cybersecurity and data privacy by first examining current laws, rules and regulations across the globe, and second by way of example, through the lens of a recent, major cybersecurity incident. Next, this article proposes an alternative comprehensive approach that focuses on creating defensible cybersecurity and data privacy programmes for organisations through enterprise risk management. The enterprise risk management approach addresses a wide range of risks, including information security and legal risks. This article also explores how a comprehensive enterprise risk management strategy, which includes careful ri
• DESIGN FOR LEGAL SYSTEMS Design has its roots in physical things, from buildings to weapons to spacecraft. It has only begun to meaningfully explore human systems. Fuzzy set theory and object-oriented design are tools that have indisputably proven their utility in physical systems; some of these utilities can port over to the modelling and design of human systems. This article operates from the point-of-view of legal pragmatism. We look at how fuzzy theory might help the designer engage and embrace uncertainty inherent in human systems generally. One of every society's most fundamental systems is the making and managing of law, policy and their consequent norms. We explore object-oriented analysis and design as a way to see and think differently about problem domains, and how solutions created by law and policy makers might operate better within legal systems. As sophisticated technologies swiftly embed themselves into and alter the operation of our human systems, including our legal systems, our ability
• INTRODUCTION
• JUDICIAL DECISION-MAKING AND EXPLAINABLE ARTIFICIAL INTELLIGENCE A Reckoning from First Principles In light of rapid developments in legal technology, it is timely to begin considering whether, and if so how, artificial intelligence (“AI”) can replace judges. However, given that law plays a crucial role in maintaining societal order, that judges are a crucial part of ensuring the continued well-functioning of the law, and also that there are still many unknowns in the use and deployment of AI, it would be prudent to examine and understand exactly what roles judges play in the legal system, and how they do so, before we make any bold steps towards replacing judges with AI. This article examines the current and reasonably foreseeable state of AI to consider its capabilities, as well as the process by which judges make decisions and the duties they are subject to. This article will then consider whether or how AI, given its current and foreseeable state of development, may be used in judicial decision-
• LEGAL AND REGULATORY INTERVENTION IN THE CRYPTOCURRENCY SPACE An Impossible Task? It is often alleged that cryptocurrencies are “trustless”, “immutable” and “decentralised” and that these traits not only make them “self-regulating”, but also render legal and regulatory intervention in the cryptocurrency space impossible. The accuracy of such allegations is questionable. A closer examination of the mechanics behind several cryptocurrencies reveals that, while some cryptocurrencies display degrees of the aforementioned traits, cryptocurrencies are not completely “trustless”, “immutable” or “decentralised” in every case. Furthermore, with reference to incidents like the 2016 hack of “The DAO”, it will be shown that the degree of “immutability” possessed by some cryptocurrencies does not enable them to be “self-regulating”, in the sense that they are able to police themselves against illegal conduct which may otherwise occur on such networks. Finally, it will be demonstrated that while the degrees of “t
• MACHINES ARE TAKING OVER — ARE WE READY? Law and Artificial Intelligence Artificial intelligence (“AI”) has consequences for practical legal matters like liability, procedure and similar, and for philosophical and ethical questions: is it always suitable to use AI, how to deal with consequences for human rights? This article presents practical examples from Estonia, which is beginning to include AI in legislation, and discuss what questions should be asked when creating and implementing AI law. Some legislation can quite easily be adapted but sometimes a new way of thinking may be needed. This is not primarily a legal question, but lawyers need to contribute in order to highlight challenges and suggest solutions.
• PRIVATE AND COMMON PROPERTY RIGHTS IN PERSONAL DATA This article makes a case for examining personal data from a property law perspective. In particular, it sets out the arguments both in favour of and against granting private and common property law rights in personal data. While property law is not a panacea for all the problems that have arisen in the big data era, it provides a useful framework and a set of established principles for approaching those problems.
• “MOVE FAST AND BREAK THINGS”: LAW, TECHNOLOGY, AND THE PROBLEM OF SPEED Since computers entered into the mainstream in the 1960s, the efficiency with which data could be processed has raised regulatory questions. This is well understood with respect to privacy. Data that was notionally public — divorce proceedings, say — had long been protected through the “practical obscurity” of paper records. When such material was available in a single hard copy in a government office, the chances of one's acquaintances or employer finding it was remote. Yet when it was computerised and made searchable through what ultimately became the Internet, such practical obscurity disappeared. Today, high-speed computing poses comparable challenges to existing regulatory models in areas from securities regulation to competition law, merely by enabling lawful activities — trading in stocks, or comparing and adjusting prices, say — to be undertaken more quickly than previously conceived possible. Many of these questions are prac