We deepen Adam Burgess’ insight that under current conditions nudging cannot solve complex policy problems reliably and without controversy. We do so by integrating his concerns about nudging into Braden Allenby and Daniel Sarewitz's three-leveled model of the basic problems technology can address and generate. We use this model to explain why the UK experiment with nudging has revolved around techno-fixes with limited policy potential, and conclude that nudging is best seen as an emerging form of soft law.

The COVID-19 pandemic is changing the face of Europe. Member States’ divergent responses to this crisis reveal a lack of unity in the face of a humanitarian catastrophe. At best, this undermines the effectiveness of health protection within the European Union (EU). At worst, it risks breaking up the Union altogether. Divergent national responses to COVID-19 reflect different national preferences and political legitimacy, and thus cannot be completely avoided. In this article, we argue that these responses should be better coordinated. Without coordination, the price for diversity is high. Firstly, there are damaging spill-overs between Member States, which undermine key pillars of European integration such as the free movement of persons and of goods. Secondly, national policy-making is easily captured by local interest groups. Our proposal is that the EU indicates – not mandates – a European exit strategy from asymmetric containment policies of COVID-19. In particular, the EU should help Member States procure and validate tests for infection and immunity. The EU should also indicate ways in which testing could be used to create safe spaces to work, thereby restoring the free movement of persons and of goods. We see a great advantage in such EU guidance: it could improve mutual learning between Member States, which have faced different timings of the epidemic and learned different lessons. Although the local political economy has so far delayed learning and undermined cooperation, the EU can mitigate both effects and indicate the way for Europe to resurrect united from the ashes of COVID-19.

This piece critically analyses the development of a novel food technology: the Frankenburger, a type of cultured/in vitro meat (or ‘shmeat’, which stands for ‘sheet of meat’). It assesses the risks raised by cultured meat as well as the role it could play to alleviate environmental and food security concerns. The article argues that the current EU regulatory structures for cultured meat, and for novel foods more generally, ought to be strengthened. There is a necessity to transfer and develop food innovations in partnerships with all the relevant stakeholders (the public, scientists, the food industry, policy-makers and regulators). Including interested parties from the inception of a technology as well as within the decision-making process would provide a supporting framework for cultured meat.

Due to its borderless nature, COVID-19 has been a matter of common European interest since its very first detection on the continent. Yet this pandemic outbreak has largely been handled as an essentially national matter. Member States adopted their own different, uncoordinated and at times competing national responses according to their distinctive risk analysis frameworks, with little regard1 for the scientific and management advice provided by the European Union (EU), notably its dedicated legal framework for action on cross-border health threats.2 To justify such an outcome as the inevitable consequence of the EU’s limited competence in public health is a well-rehearsed yet largely inaccurate argument3 that calls for closer scrutiny.

The sharing economy phenomenon is expected to expand and grow steadily in the coming years. Yet, this sector lacks solid regulation, which raises concerns about its potential risks. However, users continue to engage in sharing economy practices, as opportunities appear to outweigh the perceived risks. This article argues that it is important to look beyond regulatory frameworks, and unravel the social embeddedness of sharing practices in order to provide complementary approaches to risk analysis. In particular, the focus of this article will be placed on the opportunities for building and deploying social capital in the sharing economy and its fundamental role in the development of new sharing economy practices.

This article focuses on copyright issues pertaining to generative artificial intelligence (AI) systems, with particular emphasis on the ChatGPT case study as a primary exemplar. In order to generate high-quality outcomes, generative AI systems require substantial quantities of training data, which may frequently comprise copyright-protected information. This prompts inquiries into the legal principles of fair use, the creation of derivative works and the lawfulness of data gathering and utilisation. The utilisation of input data for the purpose of training and enhancing AI models presents significant concerns regarding potential violations of copyright. This paper offers suggestions for safeguarding the interests of copyright holders and competitors, while simultaneously addressing legal challenges and expediting the advancement of AI technologies. This study analyses the ChatGPT platform as a case example to explore the necessary modifications that copyright regulations must undergo to adequately tackle the intricacies of authorship and ownership in the realm of AI-generated creative content.

This paper argues for a sandbox approach to regulating artificial intelligence (AI) to complement a strict liability regime. The authors argue that sandbox regulation is an appropriate complement to a strict liability approach, given the need to maintain a balance between a regulatory approach that aims to protect people and society on the one hand and to foster innovation due to the constant and rapid developments in the AI field on the other. The authors analyse the benefits of sandbox regulation when used as a supplement to a strict liability regime, which by itself creates a chilling effect on AI innovation, especially for small and medium-sized enterprises. The authors propose a regulatory safe space in the AI sector through sandbox regulation, an idea already embraced by European Union regulators and where AI products and services can be tested within safeguards.

The proposed Artificial Intelligence Act (AI Act) is the first comprehensive attempt to regulate artificial intelligence (AI) in a major jurisdiction. This article analyses Article 9, the key risk management provision in the AI Act. It gives an overview of the regulatory concept behind the norm, determines its purpose and scope of application, offers a comprehensive interpretation of the specific risk management requirements and outlines ways in which the requirements can be enforced. This article can help providers of high-risk systems to comply with the requirements set out in Article 9. In addition, it can inform revisions of the current draft of the AI Act and efforts to develop harmonised standards on AI risk management.

Since first embarking on the road of risk management options for the regulation of recombinant DNA (rDNA) activities and use in 1978, the European Union (EU) has largely failed to create a regulatory and policy environment regarding genetically modified (GM) crops and their cultivation that is (a) efficient, (b) predicable, (c) accountable, (d) durable or (e) interjurisdictionally aligned.

This paper compares Initial Public Offerings (IPOs) and equity crowdfunding with Initial Coin Offerings (ICOs) and explores the corresponding risks and limitations of these different fundraising practices, with a view to analysing the extent to which the latter should be subject to the same regulatory framework as the former. After assessing the underlying principles and current regulatory framework for IPOs and equity crowdfunding, with a focus on Europe and the US, we investigate the possibility of applying existing financial regulations to ICOs. Drawing from the notion of “functional equivalence”, we contend that many ICOs share a sufficient number of similarities with traditional IPOs and equity crowdfunding, to be regulated in a similar manner. However, given the various attempts by token issuers to escape from the scope of securities laws by assigning a different function to their ICOs tokens, we argue that principle-based regulation based on an in-depth risk-analysis could be an effective way of addressing the regulation of ICOs, thereby moving from “functional equivalence” to “risk equivalence”. Finally, we explore the use of blockchain technology as a regulatory technology, incorporating specific rules and constraints into the technological fabric of an ICO, in order to ensure compliance with the fundamental principles of financial regulation.

On 16 December 2020, the European Commission delivered on the plans proposed in the European Digital Strategy by publishing two proposals related to the governance of digital services in the European Union: the Digital Services Act (DSA) and the Digital Markets Act (DMA). The much-awaited regulatory reform is often mentioned in the context of content moderation and freedom of expression, market power and competition. It is, however, important to bear in mind the contractual nature of the relationship between users and platforms and the additional contracts concluded on the platform between the users, in particular traders and consumers. Moreover, the monetisation offered by digital platforms has led to new dynamics and economic interests. This paper explores the reform proposed by the European Commission by means of the DSA by touching upon four main themes that will be addressed from the perspective of consumer protection: (1) the internal coherence of European Union law; (2) intermediary liability; (3) the outsourcing of solutions to private parties; and (4) digital enforcement.

Harmonization is an essential instrument of international risk governance. It is the process through which disparities among national regulatory standards are ironed out, producing uniform outcomes that all participants in a regime can accept and that facilitate the free exchange of regulated goods in commerce. Contrary to conventional belief, however, harmonization requires not only technical but also political cooperation, since standards themselves are not direct mirrors of reality but are co-produced responses to technoscientific and political uncertainty. Attempts to harmonize standards across national borders therefore pit alternative political cultures and their systems of public reasoning against one another. Put differently, harmonization calls into question the underlying models of subsidiarity that provide the foundation for robust international regimes. This paper examines three models of epistemic subsidiarity – coexistence, cosmopolitanism, and constitutionalism – and discusses each scheme's capacity to protect a nation's fundamental political commitments while advancing the goals of international risk governance.

Like some other crises and scandals that periodically occur in the business community, the Volkswagen (“VW”) scandal once again highlights the devastating consequences of corporate misconduct, once publicly disclosed, and the media storm that generally follows the discovery of such significant misbehaviour by a major corporation. Since the crisis broke in September 2015, the media have relayed endless details about the substantial negative impacts on VW, on various stakeholder groups such as employees, directors, investors, suppliers and consumers, and on the automobile industry as a whole.1 The multiple and negative repercussions at the economic, organizational and legal levels have quickly become apparent, in particular in the form of resignations, changes in VW's senior management, layoffs, a hiring freeze, the end to the marketing of diesel-engined vehicles, vehicle recalls, a decline in car sales, a drop in market capitalization, and the launching of internal investigations by VW and external investigations by the public authorities.

Governments around the world are strictly regulating information on social media in the interests of addressing fake news. There is, however, a risk that the uncontrolled spread of information could increase the adverse effects of the COVID-19 health emergency through the influence of false and misleading news. Yet governments may well use health emergency regulation as a pretext for implementing draconian restrictions on the right to freedom of expression, as well as increasing social media censorship (ie chilling effects). This article seeks to challenge the stringent legislative and administrative measures governments have recently put in place in order to analyse their negative implications for the right to freedom of expression and to suggest different regulatory approaches in the context of public law. These controversial government policies are discussed in order to clarify why freedom of expression cannot be allowed to be jeopardised in the process of trying to manage fake news. Firstly, an analysis of the legal definition of fake news in academia is presented in order to establish the essential characteristics of the phenomenon (Section II). Secondly, the legislative and administrative measures implemented by governments at both international (Section III) and European Union (EU) levels (Section IV) are assessed, showing how they may undermine a core human right by curtailing freedom of expression. Then, starting from the premise of social media as a “watchdog” of democracy and moving on to the contention that fake news is a phenomenon of “mature” democracy, the article argues that public law already protects freedom of expression and ensures its effectiveness at the international and EU levels through some fundamental rules (Section V). There follows a discussion of the key regulatory approaches, and, as alternatives to government intervention, self-regulation and especially empowering users are proposed as strategies to effectively manage fake news by mitigating the risks of undue interference by regulators in the right to freedom of expression (Section VI). The article concludes by offering some remarks on the proposed solution and in particular by recommending the implementation of reliability ratings on social media platforms (Section VII).

When reviewing a job application letter, going on a first date, or considering doing business with someone, the first thing many people do is entering the person's name in a search engine. A search engine can point searchers to information that would otherwise have remained obscure. If somebody searched for the name of Spanish lawyer Mario Costeja González, Google showed search results that included a link to a 1998 newspaper announcement implying he had financial troubles at the time. González wanted Google to stop showing those links and started a procedure in Spain. After some legal wrangling, the Spanish Audiencia Nacional (National High Court) asked the Court of Justice of the European Union (CJEU) for advice on the application of the Data Protection Directive, which led to the controversial judgment in Google Spain. In its judgment, the CJEU holds that people, under certain conditions, have the right to have search results for their name delisted. This right can also extend to lawfully published information.

The long subtitle of this paper, appearing in the first issue of the EJRR – a publication which fills a serious gap in the scholarly literature of the old continent – identifies what I take to be the key terms of the current debate on risk regulation. It is impossible to understand the evolution of risk regulation over the last three decades in Europe and the United States without having a good grasp of how these concepts, and their corresponding practices, interact. How, for example, does a particular institutional design affect the way scientific uncertainties are resolved? What decision rules are appropriate in situations of high scientific uncertainty? Which constitutional principles facilitate policy learning and accountability in the regulation of risk?

Many factors influence consumers’ perceptions and purchasing decisions, with product labelling forming the primary means of communication. The extent to which labels should contain information about traceability is debated. Whilst traceability is an important tool used by food business organisations and regulators in assuring food safety, other drivers for information about traceability are less well understood. This paper reviews the issues related to drivers for traceability from a consumer perspective, and evaluates country-of-origin labelling (COOL), enabling technologies and food fraud as potentially significant drivers in consumer requirements for information. The implications for risk assessment, systems implementation and communications about traceability are also considered.

This article investigates the rise of algorithmic disease surveillance systems as novel technologies of risk analysis utilised to regulate pandemic outbreaks in an era of big data. Critically, the article demonstrates how intensified efforts towards harnessing big data and the application of algorithmic processing techniques to enhance the real-time surveillance and regulation infectious disease outbreaks significantly transform practices of global infectious disease surveillance; observed through the advent of novel risk rationalities which underpin the deployment of intensifying algorithmic practices to increasingly colonise and patrol emergent topographies of data in order to identify and govern the emergence of exceptional pathogenic risks. Conceptually, this article asserts further howthe rise of these novel risk regulating technologies within a context of big data transforms the government and forecasting of epidemics and pandemics: illustrated by the rise of emergent algorithmic governmentalties of risk within contemporary contexts of big data, disease surveillance and the regulation of pandemic.

The article examines the field of legal automation, its advantages and drawbacks, the ways in which legal constraints and safeguards can be embedded into technology and how the law may govern human behaviour through codes, IT architectures, and design. By stressing both benefits and shortcomings of legal automation, the article does not suggest that the latter is something “neutral”. Rather, making legal reasoning and enforcement automatic, so that even a machine can process and understand this information, should be conceived as a set of constraints and affordances that transform, or reshape, the environment of people’s interaction and moreover, the interplay of human and artificial agents, thereby affecting basic pillars of the (rule of) law. The overall aim is to flesh out goals and values that are at stake with choices of technological dependence, delegation and trust, so as to determine the good mix between legal automation and public deliberation.

In a ruling on 25 July 2018, the Court of Justice of the European Union concluded that organisms obtained by means of techniques/methods of mutagenesis constitute GMOs in the sense of Directive 2001/18, and that organisms obtained by means of techniques/methods of directed mutagenesis are not excluded from the scope of the Directive. Following the ruling, there has been much debate about the possible wider implications of the ruling. In October 2019, the Council of the European Union requested the European Commission to submit, in light of the CJEU ruling, a study regarding the status of novel genomic techniques under Union Law. For the purpose of the study, the Commission initiated stakeholder consultations early in 2020. Those consultations focused on the technical status of novel genomic techniques.

This article aims to contribute to the discussion on the legal status of organisms developed through novel genomic techniques, by offering some historical background to the negotiations on the European Union (EU) GMO Directives as well as a technical context to some of the terms in the Directive, and by analysing the ruling. The article advances that (i) the conclusion that organisms obtained by means of techniques/methods of mutagenesis constitute GMOs under the Directive means that the resulting organisms must comply with the GMO definition, ie the genetic material of the resulting organisms has been altered in a way that does not occur naturally by mating and/or natural recombination; (ii) the conclusion that organisms obtained by means of techniques/methods of directed mutagenesis were not intended to be excluded from the scope of the Directive is not inconsistent with the negotiation history of the Directive; (iii) whether an organism falls under the description of “obtained by means of techniques/methods of directed mutagenesis” depends on whether the genetic material of the resulting organisms has been altered in a way that does not occur naturally by mating and/or natural recombination. Finally, the article offers an analysis of the EU GMO definition, concluding that for an organism to be a GMO in the sense of the Directive, the technique used, as well as the genetic alterations of the resulting organism, must be considered.