A common theme of regulatory responses to Covid-19 has been the use of technology: in attempts to map the virus and its transmission, relax lockdowns and restart economies, and search for a vaccine to end the pandemic, technologies have held centre stage. Using the example of contact tracing, this Comment considers the significance of states’ reliance on technologies to achieve their regulatory objectives and some of the issues it raises. While most of the discussion around contact tracing systems has focused on privacy and data protection, their use also has wider implications for individuals and communities, particularly in the case of mobile apps. These concern legality, moral responsibility and community, autonomy, and democracy, which even expansive conceptions of privacy and data protection are unlikely fully to accommodate.
For the SSRN pre-print see at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3513823
European patent law prohibits the grant of a patent for any invention the commercial exploitation of which would be contrary to morality or ordre public (public policy). Since the introduction of the EU’s Biotech Patenting Directive in 1998, the “morality” aspect of this prohibition has been given new life with assistance from the Charter of Fundamental Rights and the Court of Justice of the European Union. In contrast, the “public policy” aspect remains largely dormant owing to its restrictive interpretation over many years by the European Patent Office. If the patent system is to have democratic and social legitimacy in an era of accelerating technological change and uncertainty, that interpretation needs to be revisited and a new method introduced for assessing the moral and public policy implications of patent applications. This should not be difficult to achieve, since such a method already exists and has been deployed in other areas of technology regulation.
