Robertson & Hoffman on Professional Speech at Scale

Cassandra Burke Robertson (Case Western Reserve University School of Law) and Sharona Hoffman (Case Western Reserve University School of Law) have posted “Professional Speech at Scale” (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause public harm long before regulatory processes can gear up to address it.

This article examines how these two trends interact in the fields of health-care regulation and legal practice. It looks at how these forces work together both to create new regulatory problems and to shape the potential government responses to those problems. It analyzes the Supreme Court’s developing caselaw on professional speech and predicts how the Court’s jurisprudence is likely to shape current legal challenges in law and medicine. The Article further examines the regulatory challenges posed by the change in scale generated by massive digital platforms and the introduction of artificial intelligence. It concludes by recommending ways in which government regulators can meet the new challenges posed by technological development without infringing on protected speech. The crux of our proposal is that incremental change in the traditional state regulatory process is insufficient to meet the challenges posed by changes in technological scale. Instead, it is time to ask bigger questions about the underlying goals and first principles of professional regulation.

Tosoni on The Right To Object to Automated Individual Decisions

Luca Tosoni (University of Oslo) has posted “The Right To Object to Automated Individual Decisions: Resolving the Ambiguity of Article 22(1) of the General Data Protection Regulation” (11 International Data Privacy Law (2021) on SSRN. Here is the abstract:

This article provides a critical analysis of Article 22(1) of the European Union’s General Data Protection Regulation (‘GDPR’). In particular, the article examines whether, as a matter of lex lata, the enigmatic ‘right not to be subject to a decision based solely on automated processing’ provided for in Article 22(1) should be interpreted as a general prohibition or as a right to be exercised by the data subject. These two possible interpretations offer very different protection to the interests of data subjects and controllers: if the basic rule in Article 22(1) were interpreted as a prohibition, controllers would basically not be allowed to make individual decisions solely based on automated processing, unless one of the specific exceptions specified in Article 22(2) applies; conversely, if that in Article 22(1) were interpreted as a right to be actively exercised, the use of automated individual decisions would normally be restricted under the GDPR only where the data subject has expressly objected to it. Thus, resolving the ambiguity of Article 22(1) is critical to understand what is the scope left for automated decision-making under EU data protection law. Based on a textual, contextual, systematic and teleological interpretation of Article 22(1), the article concludes that such a provision is better characterized as conferring upon data subjects a right that they may exercise at their discretion, rather than establishing a general ban on individual decisions based solely on automated processing.