In this special issue, we present five original peer-reviewed articles, which examine a range of interesting and current legal issues surrounding social media. The issue showcases research in regulation and activism, public law vs. social media, privacy and identification, as well as copyright infringement on social media. This is a very timely special edition. After an already long and strenuous battle with regulators across the world over fake news, takedown policies and the tracking of browsing-behaviour, social media took a sledgehammer blow in March 2018. The joint efforts of the Guardian and Channel 4 laid bare how Facebook’s data policies resulted in massive amounts of user data effectively ending up in the hands of devious ‘political consultants’ such as Cambridge Analytica. Even if the scandal is unlikely to be Facebook’s coup de grâce, it certainly seems to have brought about a watershed moment in social media scepticism. Investigatory ‘data-journalism’ is on the rise, and with it is a growing awareness among the broader public about the tech sector’s shady underbelly. This growing momentum will hopefully lead to answers to some of the core questions policy-makers and academics have been struggling with for many years now already. These questions relate to, for instance, the regulation of content on online platforms and intermediaries, users privacy and data protection, accountability and transparency of platforms and governments, freedom of speech and autonomy of users, and the wider development of digital economy. Social media players constitute the nodes where these issues come together and therefore offer a great focal point to investigate and try to frame solutions. We believe that the contributions in this special issue will help elucidate some aspects of these questions and can inform the debate, policy and laws with well-presented and original research. The first article, written by Celeste, investigates constitutional questions in the realm of social media, and how to deal with fundamental rights in relation to such global power actors. Fundamental human rights have traditionally been questions of a rather state-centric, public law nature. Yet today, these questions increasingly play out in the context of private actors, not in the least powerful social media operators transcending national borders. Celeste explores innovative solutions, such as the constitutionalisation of social media’s terms of service and bills of rights of social media users. To what extent can these documents replace or complement existing constitutional instruments? Many of these documents at least seem to aspire to do so. According to the author, this aspiration can be explained by a desire for reconfiguring the constitutional equilibrium, which has been upset by these powerful tech players in the first place. Eventually, Celeste concludes that even though there might be some theoretical justification for constitutionalisation in social media, significant drawbacks remain. He explains how future constitutionalisation initiatives – either coming from private actors or the state – should be closely monitored and analysed. In the end, it might well be that a ‘multilevel’ type of constitutional governance will be the middle way for ensuring the effective protection of fundamental rights in the social media environment. Dempsey Willis’ article looks at democratic processes and explores the effectiveness of international social media (Twitter) campaigns and the associated phenomenon of Advocacy 2.0. In her analysis, the author critiques current thought on social media as an advocacy tool using evidence from two Iranian campaigns, namely, #stopstoning and #letwomengotostadium. The author finds evidence that these Twitter campaigns paradoxically have led to a regression

This is a preprint of a chapter accepted for publication by Facet Publishing. This extract has been taken from the author’s original manuscript and has not been edited. The definitive version of this piece may be found in 'Partners for Preservation: Advancing digital preservation through cross-community collaboration' Facet, London, 9781783303472 which can be purchased from http://www.facetpublishing.co.uk/title.php?id=303472#about-tab

To be on the Internet is to exist as a data being constituting profiles that exist alongside the physical individuals and outlive them. In the future, the Internet will therefore contain more post-mortem data than personal data relating to living persons. What should be done with these data? The law has long remained silent on this issue and only covers personal data up to the death of the person concerned. A comparative analysis of the evolution of the law in the United States and in France reveals a difference of perspective leading to two different approaches: one based on the right to privacy and data protection, and the other based on inheritance law, which treats post-mortem data as heritage.

© 2017 Kluwer Law International B.V., a Wolters Kluwer Company. All rights reserved. This is the accepted manuscript version of an article which has been published in final form at https://kluwerlawonline.com/journalarticle/Journal%20of%20European%20Consumer%20and%20Market%20Law/6.6/19647.

Edina Harbinja, ‘Post-mortem social media: law and Facebook after death’, in David Mangan, Lorna Gillies, eds., The Legal Challenges of Social Media, (Cheltenham: Edward Elgar, 2017), ISBN 978 1 78536 450 1.

The conference theme 'Future, law, education and technology: WoW, have we forgotten something?' alluded to both developments relating to the right to be forgotten as well as the University's successful co-curricular programme 'War of Words WoW'. Conference delegates were invited to participate in a WoW session on topics related to BILETA's research areas. Other special events at BILETA 2016 included a panel on surveillance, a Googlesupported workshop on the right to be forgotten, a Google PhD workshop, and an open forum on the Research Excellence Framework and IT law. Some of the questions that were considered during the conference included IP and copyright infringement, bitcoin, botnets, cybercrime, legal language and education, information retrieval and brokerage, surveillance, censorship, artificial intelligence, privacy by design, and much else.

ABSTRACT This paper builds on the general survey of post-mortem privacy set out in the author’s earlier work. The concept of post-mortem privacy is further developed both at a theoretical level (underpinned by theories of autonomy) and a doctrinal level (considering concepts such as testamentary freedom, and the protection of personal data). Finally, the paper looks at some current developments of technology (tech solutions for the protection of post-mortem privacy) and law/policy (work done by the US Uniform Law Commission on the Uniform Fiduciary Access to Digital Assets Act – UFADAA). The argument is that both of these regulatory modalities provide examples and illustrations of how post-mortem privacy can be recognised practically, especially in the online environment. The paper is, therefore, setting the scene further in this under-explored area, also aiming to set the basis for the author’s subsequent empirical research (attitudes towards post-mortem privacy, quantitative and qualitative).

There is currently a conflict between laws and the market in their treatment of email. Laws mandate that emails are not protected as property unless copyrightable or protected by another legal mechanism. But the market suggests that emails are user-owned property without further qualification. Moreover, the nature of email is treated slightly differently between the U.S. and U.K. legal regimes. While the current legal regimes applicable to email in the U.K. and U.S. are reasonable, legal harmonization within these systems, and with the service provider market, should be achieved.

This paper addresses the lack of legal literature in the area of death and virtual worlds. It sheds light on the legal status of different in-game assets, assessing whether these could fit within the notions of property or other relevant legal concepts such as intellectual property, usufruct, or easements. Having determined this, the paper goes on to explore the possibilities regarding the transmission of these assets on death. The author does not share views of a great portion of the legal literature arguing for recognition of "virtual property" as a concept. Rather, this paper proposes an alternative solution in order to reconcile different interests arising in VWs; primarily, those of developers and players. Recognising a phenomenon of consitutionalisation of VWs, this article suggests a solution in the form of servitudes (usufruct). Virtual usufruct is herein conceived as player's entitlement to use the VW account and profit from it, if applicable. It is suggested that the entitlement to use the account expires on death, but that it allows a player's personal representative/executor to gain access to the account and extract any possible monetary value. This solution would enable players to take more control over their virtual assets and heirs to potentially benefit from valuable VW accounts.

This article questions the preconceived notions that participants in virtual worlds are essentially consumers. Building on the existing scholarship around virtual worlds and notwithstanding the current character of virtual worlds, this paper explores aspects of End User Licence Agreements and notes the unfairness of their provisions, particularly the imbalance between user and developer interests governed by such contracts. It argues that the contracts cannot be regulated with consumer protection legislation, as interests such as property or intellectual property are beyond the scope of consumer protection regimes. Finally, recognising the phenomenon of constitutionalisation of virtual worlds, the article argues for stronger regulatory solutions in this domain, in order to strike a more appropriate balance between competing interests in virtual worlds.

This article questions the preconceived notions that participants in virtual worlds are essentially consumers. Building on the existing scholarship around virtual worlds and notwithstanding the current character of virtual worlds, this paper explores aspects of End User Licence Agreements and notes the unfairness of their provisions, particularly the imbalance between user and developer interests governed by such contracts. It argues that the contracts cannot be regulated with consumer protection legislation, as interests such as property or intellectual property are beyond the scope of consumer protection regimes. Finally, recognising the phenomenon of constitutionalisation of virtual worlds, the article argues for stronger regulatory solutions in this domain, in order to strike a more appropriate balance between competing interests in virtual worlds.

Post-mortem privacy is not a recognised term of art or institutional category in general succession law or even privacy literature. It may be termed the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after their death. While of established concern in disciplines such as psychology, counselling and anthropology, this notion has till now has received relatively little attention in law, especially common law. We argue that the new circumstances of the digital world, and in particular the emergence of a new and voluminous array of “digital assets” created, hosted and shared on web 2.0 intermediary platforms, and often revealing highly personal or intimate personal data, require a revisiting of this stance. An analysis of comparative common and civilian law institutions, focusing on personality rights, defamation, moral rights and freedom of testation, confirms that there is little support for post-mortem privacy in common law, and while personality rights in general have greater traction in civilian law, including their survival after death, the primary role taken by contract regulation may still mean that users of US-based intermediary platforms, wherever they are based, are deprived of post mortem privacy rights. Having establshed a crucial gap in online legal privacy protection, we suggest future protection may need to come from legislation, contract or “code” solutions, of which the first emergent into the market is Google Inactive Account Manager.

This article aims to shed some light on post-mortem privacy, a phenomenon rather neglected in the legal literature. Acknowledging the quite controversial nature of the phenomenon and certain policy and legal arguments pro and contra, the paper explores the data protection (informational privacy) aspect of the issue. More precisely, the focus is on the distinction between the current and the newly proposed data protection regime in the European Union (EU), assessing how these regimes are susceptible to protecting the deceased’s personal data. The paper will note the differences between the proposed text of the Data Protection Regulation Proposal and subsequent amendments. Moreover, the paper will assess which solutions are more suitable to enable incorporation of the post-mortem privacy in the data protection regime, acknowledging the overall lack of certainty regarding the finalisation of the Regulation’s content. In so doing, this paper aims to detect elements in the new regime that seem to be promoting, at least theoretically, the propertisation of personal data, while partly disregarding its human rights basis. Having this assumption in mind and noting the difference between property, liability and contracts regimes (e.g. transmission on death), it will be argued that the new regime, at least in theory, could be perceived as promoting post-mortem privacy and, under certain circumstances, enabling better control of deceased people’s personal data. The paper, however, does not support this change and suggests that post-mortem privacy should be contemplated within the human rights-based regime.