A copy of my slides from the annual law and technlogy conference BILETA (British, Irish, Law, Education, and Technology Association) From 2018 in Aberdeen, Scotland

1. Dr Mark Leiser Assistant Professor
eLaw – Center for Law and DigitalTechnologies
Leiden University
December 11th, 2018

2.  Market enhancing user/consumer rights through informed choice of services
 “Weaponizing” existing offences to make them more effective – in order to address the existing
regulatory gaps and enhance public trust in our offline and online communications systems in future
 Data protection has limited capabilities to respond to harms associated w/ political disinformation
 Need transparency in political advertising
 Enable enforcement of existing rules
▪ Should market/user preferences be basis for selecting, further promoting content - difference between
consumer interest setting agenda & editorial control?
 Algorithms can implement editorial control
 Nb follow different criteria to legacy media subject to self-regulatory or state/co-regulatory systems
▪ Accountability, accuracy, fairness – and for broadcast sector balance
▪ Replace present process of validating news through quantification of popularity
▪ Quality news dismissed, flat-earth videos get pushed
▪ Greater scope for responsible media to operate within trusted section of site
▪ I.e. “this is what regulated media services are saying”
▪ “This is what users who have not sought some form of accreditation are saying” 2

3.  The ‘silo-ization’ of data protection law
 No cooperation between data protection, electoral, and media regulators
 Despite challenges of shared principles of “transparency”, “fairness”,
“includes tracking profiling, etc.”
 Advertising ecosystem traditionally tied to consumer protection,
but.. .
 No political advertising rules for the online environment, and…
▪ Fairness and truthfulness is not for data protection to regulate
 European Data Protection Supervisors : Article 80 GDPR provides for the right for the data subject to ‘mandate a
not-for-profit body, organisation or association’, under certain conditions, to exercise certain rights on the data
subject’s behalf…when unlawful, non-transparent, or unfair… BLUNT ex post TOOL
3

4.  Understanding two distinct systems for regulating
 US focuses on ensuring that each side in national, state, and local
elections remains aware of what the other side is saying
 UK approach focuses on financial transparency general/national election
expenditure rules mandating specific limits on contributions
▪ Ofcom’s Broadcasting Code mandates general prohibition on television
advertisements
▪ Political parties allocated blocks of free airtime for party political broadcasts
(PPBs), labelled party election broadcasts (PEBs) during official campaign periods.
▪ Could the answer be more data…?
4

5.  Time to move away from relyiance on data protection?
 Section 75 RoPA, national/regional party expenditure is governed by the PPERA 2000.
 Spending is controlled for 365 days ending w/date of poll for UK Parliamentary general
election, for agreed period preceding election
▪ PURDAH)
 Other types of regulated elections: party & issue-based campaigning regulated only at
relevant elections
 Co-regulatory marketing groups should agree to Codes of Good Practice
▪ Enforceable by the UK Electoral Commission
▪ Mandating that court may order that social media sites close accounts of those practicing deceptive
marketing
5

6.  Live metadata about political advertisements held in public repository alongside ad
▪ Who purchased advertisement?
▪ Who published it?
▪ Anonymized metadata about users shown ad? Landing page?
▪ How long it was visible?
 Create a marketplace of competing online political advertisements, allow other side to
counteract ads harmful to their candidate and/or cause with their own ads
 Brings online advertisements under same rules as television and radio and close the
loophole permitting Internet companies to accept foreign money for political advertising
▪ Bipartisan Campaign ReformAct of 2002
 BCRA required disclosure of purchaser ofTV, radio advertisements
▪ Amended original Federal Election Campaign Act of 1974 to prohibit foreign nationals (and governments)
from engaging in such political spending.
▪ Federal ElectionCampaigns Act and Commission regulations include a broad prohibition on foreign national
activity in connection with elections in the United States. 52 U.S.C. § 30121 and generally, 11 CFR 110.20
6

7.  Intelligent/Smart Disclosure
 Market based solution to the problems associated w/ fake news
▪ Harms
▪ Echo Chambers & Filter bubbles
▪ Mining; Profiling & Targeted Advertising
▪ Political influence leads to bad ideas
 Problems:
 Challenge to rational assumptions people would not search out these news stories anyway
▪ Assumes users have no self-control problems;
▪ Regulatory whack-a-mole over platforms, pointless hashtags, content regulation
 Psychological Assumptions
▪ News overload, too much choice, lack of transparency, framing, defaults options, and mental accounts
 Right to data portability
 Allows individuals to obtain and reuse their personal data for their own purposes across different services
 Allows them to move, copy or transfer personal data easily from one IT environment to another in a safe and secure way,
without hindrance to usability
 Personal data in a structured, commonly used and machine readable form.
▪ Open formats include CSV files.
▪ Machine readable means that the information is structured so that software can extract specific elements of the data
▪ Enables other organisations to use the data
7

8.  Some Objectives
 Enable users to become more informed
users
 Create a marketplace that rewards high
quality + informs users
 Eliminate or reduce the need for the
endless whack-a-mole regulation cycle
 Create new markets for usage data: fake
news and deceptive content
 Quantify number of articles by “right-
leaning” press, conspiracy theories, fake
news, non-regulated media outlets
(Impress, for example)
 Some Caveats
 Regulator should mandate more data is
stored, not less.
▪ Metadata about advertising, time spent,
inferences, social interactions, sharing history,
XML tags about self-regulatory mechanisms in
machine-readable format
 Compliance costs should not be burden to
agencies or firms
 Information about ads should be public,
unbiased, and tested for fairness and
transparency
▪ But their algorithms should not
8