Vol. 3 No. 2 (2023): Revista Latinoamericana de Estudios Europeos

PUBLISHED: 2023-07-12

El Latin American Journal of European Studies (ISSN 2763-8685) es una publicación del Latin American Center of European Studies, creada a partir del proyecto BRIDGE - Jean Monnet Network con financiamiento del Programa Erasmus + de la Comisión Europea. Centrándose en líneas editoriales sobre Derecho y Políticas de la Unión Europea y Relaciones Internacionales de la Unión Europea con terceros países y América Latina, la sexta edición de la Revista también cuenta con un dossier temático sobre “Política Regional de Protección de Datos e Inteligencia Artificial”, organizado por Naiara Posenato de la Università degli Studi di Milano, (Italia). La convocatoria de la sexta edición de la Revista ya se encuentra abierta y los interesados pueden enviar sus ponencias hasta el 1 de noviembre de 2023.

Edición completa

Editorial

Resumen

Aline Beltrame de Moura , Naiara Posenato

Dossier

The biometric habeas data in the digital and algorithmic era in the European Union

Palabras clave:

Biometric Data; Artificial Intelligence; Habeas Data.

Resumen

The advent of artificial intelligence and of the Big Data has affected the use of biometric data in the digital and algorithmic era, posing some critical challenges, especially in relation to the risk of surveillance, data scraping and profiling. In this context, the emergence of a novel “informationally projected corporality” requires law to rethink its approach to data protection and to define an Habeas Data for this transformation, and, in this sense, the European Union (EU) has been demonstrating to be a global leader. Under this premise, the purpose of this paper is to explore the relevant primary and secondary EU law sources, in order to provide a critical assessment of their role with respect to the challenges related to the protection of biometric data in the digital and algorithmic era. In light of this reflection, the paper develops some final considerations. In particular, it takes the view that the EU, so far, has defined a significant framework for the protection of the regional Habeas Data with respect to biometric data. However, the most pioneering change is still to come. In this respect, the paper suggest that the AI Act Proposal has the potential for bridging the current legal landscape and the future horizons of EU law and its biometric Habeas Data. Some reference is made to justiciability and to the role that the Court of Justice of the European Union (ECJ) may play, also by promoting judicial dialogue with the European Court of Human Rights (ECtHR). From the methodological viewpoint, an in-depth analysis of the relevant EU law sources and of the relevant case law of the ECJ was carried out, and some critical comparison with the jurisprudence of the ECtHR was made. Moreover, scholarship in English, Spanish and Italian was widely explored.

Simona Fanni

Data protection and artificial intelligence: regional policy of the European Unión and Mercosur

Palabras clave:

Regional policy; Artificial intelligence; Data protection; European Union; Southern Common Market.

Resumen

This paper, which does not intend to be exhaustive, will analyze the different regulations on artificial intelligence and data protection, both in the European Union system and in the Southern Common Market system. In the latter case, the individual experience of its Member States (Paraguay, Uruguay, Brazil, Argentina and Venezuela), their strategies, directives and policies aimed at the development of technology and data protection will be examined. Then, a comparison will be made to reach the conclusion as to which the most developed system in this area is and which its relationship with the predominantly adopted structure is (supranational or intergovernmental). For such purpose, the following questions will serve as a compass: What is the regional policy on artificial intelligence and data protection in each case? Is data (un)protected? Are there differences or similarities between these systems? Why? To answer these questions, I invite you to read this article and draw your own conclusions about it.

Sol Aylén Borrelli Ozón

LA PROTECCIÓN DE DATOS EN EL MERCOSUR: situación actual, perspectivas y proyecto

Palabras clave:

MERCOSUR, Data protection, Draft Decision, Artificial Intelligence, Automated Decisions.

Resumen

The purpose of this paper is to present the “state of the art” of data protection in MERCOSUR and indicate the possibilities for a future draft Decision that harmonizes the region protection level. To achieve this objective, we will proceed to: (i) Indicate the relevance of the subject related to data protection, (ii) Mention the main characteristics of the European Union General Data Protection Regulation (since it is the most advanced in the matter and because UE is, like MERCOSUR, an integration process, although in a more advanced level), (iii) Analyze the initiatives that were created from MERCOSUR to create a decision that regulates data protection in the block. To this end, the minutes of Sub-Working Group No. 13 will be analyzed, (iv) Carry out a brief comparative analysis of the various levels of protection existing among the 4 MERCOSUR States parties (Argentina, Brazil, Paraguay, Uruguay), (vi) Indicate the importance of regulation at the regional level (equal degree of protection for the member States of MERCOSUR). Based on these points, it is concluded that, given the importance of the topic related to data protection, a new MERCOSUR regulations draft is necessary and, in this sense, the present paper gives some proposals that could be incorporated into this eventual project. The methodology used in this work is essentially exploratory and qualitative. However, it also uses aspects of the descriptive methodology, for which an analysis of previous works that addressed the issue is made, as well as an analysis of regulations related to the subject.

Brenda Luciana Maffei , Nadia Guillermina Jimenez

Development of artificial intelligence in the AI-Mandamus project: elements of developed know-how

Palabras clave:

Law; Artificial Intelligence; Mandamus.

Resumen

This paper aims to identify and examine elements of the development and application of Artificial Intelligence (AI) solutions in the context of the Brazilian Judiciary (PJ). The primary focus is on the AI-Mandamus project, a result of the collaboration between the University of Brasília and the Court of Justice of Roraima (TJRR), which aims to generate and issue certain types of judicial orders (warrants) for compliance with determinations made by TJRR judges. The AI-Mandamus was conceived after studies on judicial logistics conducted by the Lab DR.IA at the University of Brasília, in response to one of the bottlenecks identified in the judicial process: the generation, issuance, and execution of judicial orders (warrants). This paper will provide context and applications of AI in the Brazilian justice system, detailing part of the development of AI-Mandamus, which consists of two AI robots that read judicial documents and generate orders, integrating with the central system for their execution. The exploratory methodology of the study was based on primary sources generated during the development of the tool, supplemented by secondary sources to support the decisions of the development team. The relevance of the participation of legal experts in all stages of AI development was demonstrated, as well as its significance as a mechanism for improvements in the forensic routine.

Cristina Mendes Bertoncini Corrêa , Debora Bonat , Fabiano Hartmann Peixoto

ARTIFICIAL INTELLIGENCE, ALGORITHMIC RECOMMENDATION AND DECISION-MAKING IN EUROPEAN UNION LAW: analysis of the regulatory challenge and legal certainty

Palabras clave:

Algorithmic Recommendation and Decision Making; Biometric Monitoring; European Union; Artificial Intelligence Act Proposal.

Resumen

The concept of artificial intelligence has been developed since the beginning of computing in the 1950s, and, since the 2010s, it has advanced more quickly, contributing to various applications. Artificial intelligence applications bring benefits and uses to various social sectors and activities. It improves optimisation and efficiency of factories and companies, diagnosis and treatment of diseases and disabilities, automating activities, operation of social networks and e-commerce platforms, and viability of autonomous cars. It is also present in the operationalization of banks, pharmacies, military forces, education system, among many others. However, along with benefits, artificial intelligence has also generated risks for society and, consequently, litigation. These disputes have been submitted to courts in different countries, generating discussions about specific regulations. In this sense, this article aims to analyse cases involving artificial intelligence in using data, biometric monitoring, algorithmic recommendation and decision-making discussed in European judicial and administrative lawsuits, as well as study the three main European Union regulations which approach that theme: the General Data Protection Regulation, the Digital Services Act, and the Artificial Intelligence Act Proposal.

Júlio César Parente Patrocínio , Débora Barreto Santana de Andrade

PROTEÇÃO DE DADOS NEURAIS NA UNIÃO EUROPEIA: impactos das (neuro)tecnologias emergentes para a (neuro) privacidade do titular

Palabras clave:

Neurodata; Artificial Intelligence; Neurorights.

Resumen

The commercialization of technologies that interface with the human brain has caught attention of the international community, as they allow the collection of data from dimensions that, until now, were considered unobservable by the general public: brain activity data, commonly referred to as “neurodata”. The insertion of such devices in the consumer market is especially relevant in the current technological context, in which Artificial Intelligence (AI) systems allow the processing of raw neurodata (inputs) and the generation of decoded neurodata (outputs) on the cognitive, affective and/or conative state of the subjects to which they refer. This new factual reality presents legal challenges regarding the protection of neurodata in the European Union (EU), raising questions as to whether neurodata qualifies as personal data for the purposes of applying the General Data Protection Regulation (GDPR) – and, consequently, as to the nature of information relating to emotions, memories, thoughts, and intentions. Focusing on these issues, this paper aims to investigate the degree of protection that the GDPR gives to neurodata in the EU today. To this end, the hypothetical-deductive method is used, starting from the hypothesis that neurodata is not formally included in the traditional GDPR model of “personal data” and “sensitive personal data”. To achieve the general objective, the work is divided into two main parts: (1) the first investigates key concepts involving the subject, to explore the research hypothesis raised; while (2) the second is dedicated to the impacts that the processing has on the data subject. The results show that there is a legal gap regarding neurodata, as it is a sui generis type of personal data, that deserves multidisciplinary and specialized study in the context of emerging (neuro)technologies for the protection of the data subject’s (neuro)privacy.

Sofia Frischenbruder Sulzbach

ELIS REGINA, NECROMANCIA DIGITAL E PRESSUPOSIÇÃO DE NEGATIVA: um estudo do projeto de lei n° 3592/23 em diálogo com a União Europeia

Palabras clave:

Artifical Inteligence; Digital Heritage; Copyrights.

Resumen

The purpose of this paper is to analyze Brazilian Bill of Rights n° 3592/23, especially the context that motivated it, namely, the recreation of the image of the singer Elis Regina via Artificial Intelligence for use in a car commercial, and its potential legal consequences, if approved. In addition, it also proposes to analyze legally the legal instrument built by this project and by the discussions that circulate around it, which can be called “presumption of refusal to use the image after death”, due to the current regulations on digital inheritance and use of Artificial Intelligence technologies. Finally, it proposes a dialogue between this Brazilian legal movement and the current regulatory landscape on the subject in the European Union, focusing on the rules for using Artificial Intelligence, Copyright and Image. For this research, a case study was conducted based on the institutional responses to the commercial that used the image of Elis Regina, with support from hypothetical-deductive analytical methods. Then, a comparative approach was carried out, with bibliographic review and theoretical study. The paper is divided into three parts: first, analyzing the phenomenon of “digital necromancy”; following with an analysis of the model case; and finally conducting a comparative theoretical study, to conclude that this Brazilian case offers an important opportunity for dialogue between Brazil and the European Union, possible due to common regulatory bases on the subject, and useful by proposing a new model for legally thinking about the dilemma of using an image after the death of individuals.

Pedro Odebrecht Khauaja

JUSTIÇA E REDES SOCIAIS: modelos comparados de regulamentação da liberdade de expressão dos Magistrados entre tutela dos direitos fundamentais e estado de direito

Resumen

Digital communication has transformed the traditional ways information is produced and disseminated, including the judicial process and the actions of its protagonists, such as the judge. Starting with a brief consideration of the positive effects of the new communication modalities, in terms of judicial transparency and access to legal information, and in negative terms, taking into account the phenomenon of the “Judgment by the Media” this study seeks to compare some recent and innovative regulations regarding the use of social networks by judges, adopted at regional and national level, study seeks to compare some recent and innovative regulations for judges’ use of social media, adopted at both regional and national levels. In particular, it aims to highlight the relationship and the necessary balance between limiting the magistrate’s freedom of expression and affirming some fundamental principles of the rule of law, such as the independence and impartiality of the judiciary.

Naiara Posenato

Artículos

A SOLIDARIEDADE E A TUTELA DAS PESSOAS MIGRANTES À LUZ DO DIREITO DA UNIÃO EUROPEIA

Palabras clave:

Migration flows; Solidarity; European Union law; Migrant rights; EU common migration policies.

Resumen

The management of migration flows in the European Union (EU) faces significant challenges due to the substantial increase in migrants and refugees. The lack of cohesion and modernization in the common migration policy weakens the protection of their rights. In this context, solidarity plays a vital role in addressing legal demands, particularly in EU Law, where it serves as a fundamental principle. This study aims to analyze the legal concept of solidarity within EU Law, with a specific focus on the protection of migrant rights. Adopting a theoretical approach, the research utilizes documental and bibliographical analysis. The study is divided into two parts. The first part examines solidarity in the context of international law and EU law, considering its challenges and significance in state-to-state relations. The second part explores solidarity as a fundamental principle for safeguarding the rights of migrants in the EU. It investigates the role and operationalization of solidarity within specific legal frameworks. The findings reveal that the unique social, political, and economic circumstances of each state or group of states present significant obstacles to the effective implementation of solidarity and the protection of migrant rights. The future of common migration policies in the EU remains uncertain. Therefore, it is crucial to harmonize regulatory instruments, enhance migration management, and address the socio-political and economic challenges to ensure adequate protection for migrant rights. This study emphasizes the need for a more cohesive and comprehensive approach to managing migration flows within the EU, aiming to guarantee the fundamental rights of migrants and refugees. Overcoming existing obstacles and promoting the effective implementation of solidarity are essential in improving migration policies and strengthening mechanisms for the protection of human rights.

Gabriel Braga Guimarães

EU GREEN DEAL: entre a transição ecológica e a luta pela manutenção de poder

Palabras clave:

Climate Change; Climate Justice; Planetary Boundaries; Ecological Economics.

Resumen

Environmental, social, humanitarian, and economic crises are part of the contemporary world. The exceeding of Earth’s limits manifests in various ways, including climate change, whose effects are already impacting various regions of the planet. Although this issue has been discussed for decades and subject to extensive international legal regulation, there are areas with significant potential for mitigation and adaptation to climate change that remain relatively unexplored. While traditional international trade arrangements are insufficient to promote well-being and the preservation of life on Earth, there is fertile ground for collaboration between international trade and climate change regimes. The European Green Deal, launched as a political project for ecological transition, has economic and trade-related objectives and implications. That stated, the overall objective of this research is to uncover the inconsistencies of the European Green Deal concerning ecological law parameters and its implications for global trade. This is a bibliographical research with descriptive purpose, deductive approach, and axiological interpretation. From the analysis of the European Green Deal based on selected parameters of ecological law, it was found that, although it reflects progress in the implementation of ecological law, the political project serves as a mechanism for maintaining power, reproducing the dominant capitalist logic, which diminishes its own transformative potential in the transition to an ecological paradigm.

Gaia Hasse

SOBRE A INEXISTÊNCIA DE EFEITO DIRETO HORIZONTAL DE DIRETIVAS NO DIREITO DA UNIÃO EUROPEIA

Palabras clave:

European Union Law; Regulation; Directive; direct applicability; vertical direct effect; horizontal direct effect.

Resumen

The article aims to shed light on the distinction between Regulations and Directives as normative acts of European Union Law (derived). Based on these concepts, the principle of direct effect of European Union Law and the notion of direct applicability are clarified. These concepts do not have the same dimension in all European Union acts. The CJEU’s case law recognizes the direct applicability of the Regulations (i.e. a direct vertical and horizontal effect). In the case of Directives, that jurisprudence only supports the possibility of vertical direct effect in relations between individuals and the State or public authorities in accordance with which individuals can invoke norms of a directive that are sufficiently clear, precise and unconditional in the context of relations legal-public. The CJEU does not recognize the possibility of a direct horizontal effect of Directives, which would be exercised in relationships between individuals (private legal relationships).

Nuno Cunha Rodrigues