25 May 2016

Digital Democracy

Dear Readers

Not only economy, administration and social cohabitation undergo changes due to digitalisation. Democracy diversifies, too. First of all, it creates transparency and, in doing so, potentially brings politics, administration and citizens closer together. Both transposing and receiving data from each other simplifies. By this, a more efficient and effective collaboration and greater democratic control are made possible.

One undesirable side-effect is that by dint of the new wealth of information, fundamental information can de facto be shrouded. Information being accessible for those who are not entitled to them – due to the fact that stealing huge amounts of information from digital data bases is simpler than taking it from paper-based archives – is another unwelcome side-effect. Unfortunately, we are just beginning to understand these phenomena of transparency. A prospectively huge benefit in terms of a policy that can act much more resolutely in public welfare than it has hitherto is in opposition to great risks of versatile shapes.

Analogically, the same applies for the digitalisation of the democracy’s processes – from e-voting via digitised policy-making up to digital citizenships and social self-organisation in the web. Major chains of inhibition of whose existence we were not aware previously, since we merely understood the world in an analogue way, are being removed. Thereby, new risks arise in turn.

In light of the huge complexity of the topic Digital Democracy – and considering the awareness of knowing more we don’t know on a daily basis – this issue tries to have its cake and eat it: both articles regarding the basic and philosophic aspects and very specific articles with regard to specialist topics are being published.

Dirk Helbing, for example, shows why we need a democracy 2.0 and, with this, a digital democracy. The time has come to respond to the emergence of a data-driven democracy. On the basis of examples, he tries to answer if feudalism 2.0, fascism 2.0, communism 2.0, socialism 2.0, democracy 2.0 or capitalism 2.0 is the solution.

After Eric Dubuis’ comments on form, current status and outlook of digital democracy with the aid of definitions, Rolf H. Weber gives his view on transparency and open data. He states: «Redounding to transparency are both the opening of governmental data pools and the assembling of a national data infrastructure. The challenges for open data occurring due to digitalisation have to be met with consequence and seen as a chance for transparent administrative actions in the future.»

On the other hand, Matthias Stürmer cautions about relevant challenges and possible (bogus) arguments against open data in governance and shows what needs to be taken into account when valuating potential data bases for logical reasons.

Using the example of Austria, Günther Schefbeck introduces us into the electronic system supporting the legislative process established there in 2004. Even though these systems have grown to be European standard in time and provide generally free and equal access to the laws in force to the majority of Austrian citizens, by this creating transparency, a demand for legal knowledge management to support the citizens in context-sensitively interpreting the laws exists nonetheless.

Alongside with the topic of transparency, participation also looms large in multiple articles.

Erich Schweighofer underlines that at European level – and international all the more – a popular government within the system of today’s international relations is unrealistic. He advocates the multistakeholder model with accountability. Since the chances of a fair participation of all relevant stakeholders – in global framework as well – can only be facilitated by determining policy development processes, sufficient information, creation of participation, ensuring of co-decision and verification of the process itself, this remains highly significant in both international and European decision-making processes.

In Switzerland, democratic attitudes have long tradition. Thus, Matthias Drilling contemplates new forms of citizen participation in urban development via social media in Switzerland. Whilst classical procedures like forums and meetings only reach a few and often call for a high intellectual level, e-participation targets both the involvement of the population and the support of collaborative opinion-forming and decision-making.

Taking the example of the Swiss municipality Grabs, Hans-Dieter Zimmermann discusses e-participation for children and adolescents in the political activities of communities.

With a political science article, Andreas Ladner paves the way to the discussion of online election assistances. Which influence do smartvote and connatural websites have on our voting behaviour? According to which parameters do those election assistances work? How can users learn to handle the particular election recommendation?

Robert Krimmer and Dirk-Hinnerk Fischer manifest themselves on the basics of the election system. They deliberate the model of a negative voting system as an enhancement of the current voting system. The proposed system can be rendered possible and curtailed in a way that the stability of democracy is not touched only by technological innovation.

In a scientific essay, I myself am analysing which practical questions the already carried out digitalisation creates, why conventional approaches to open the policy cycles originating from science fail regularly and how contradictory the pretensions and trends are. Based on this, I am illuminating up-and-coming future prospects resting upon global digitalisation trends.

Two articles treating state-relevant e-government subjects are ranging in the boundary area of the key topic Digital Democracy:

The German taxation procedure, which is reaching a point where paradigms are shifting, is being drafted by Nadja Braun Binder. By means of legislative change, the basis for «exclusively automation-supported» issued tax assessment notices is to be provided and should come into force on 1 January 2017.

Balthasar Glättli eventually presents a draft on security policy in the era of information, the state’s role, the right strategies and the resulting adequate reactions on a feasible cyber war.

In addition to the respective articles, this issue contains – in form of podcasts – presentations given at the event eGov Fokus 2/2015 of 6 November 2015 focussing on «E-Democracy – New Forms of Participation» of the Bern University of Applied Sciences’ E-Government Institute:

Erich Schweighofer, Accountability in internationalen und europäischen Entscheidungsprozessen (Podcast)
Andreas Ladner, E-Voting – mögliche Vor- und Nachteile aus politikwissenschaftlicher Perspektive (Podcast)
Reinhard Riedl, Partizipative oder simulative Demokratie? (Podcast)
Johannes W. Pichler, Partizipatorische Demokratie in der Realverfassung der EU – unterentwickelt und unvollendet (Podcast)
Rolf Hänni, Verifizierbare Internetwahlen – Technische Lösungen und Grenzen (Podcast)
Uwe Serdült, Warum es nicht vorwärts geht mit der E-Partizipation (Podcast)

Supplementary, we gladly point to the Jusletter IT Flash being released on 16 June 2016. In line with the topic, podcasts regarding e-government as well as e-democracy will be published there (presentations hold at the annual IRIS in Salzburg). As a Jusletter IT subscriber, you have full access to the contents issued in the category Flash. At irregular intervals and between the regular Jusletter IT issues, articles, podcasts and important information are going to be published there.

We wish you a fascinating reading, hearing and watching!

Bern, in May 2016

Prof. Dr. Reinhard Riedl
Berner Fachhochschule
Editorial Staff Jusletter IT

Digital Democracy

Why we need democracy 2.0 and capitalism 2.0 to survive

Dirk Helbing

The world is running into great trouble. The Anthropocene challenges (including climate change, impending resource shortages, demographic change, conflict, financial and economic crises) call for entirely new answers. As a result, we are now seeing the emergence of data-driven societies around the globe. Feudalism 2.0, fascism 2.0, communism 2.0, socialism 2.0, democracy 2.0 and capitalism 2.0 can now be built. What framework should we choose? What would be the implications?

E-Demokratie: Formen, Stand und Ausblick

Eric Dubuis

The Internet is ubiquitous: information may be selectively accessed, stored, recovered and broadcasted, and the Internet can be used for democratic processes, too. Various instruments are at disposal in order to spread information broadly in Facebook groups, forums, Twitter channels or blogs. Thanks to e-voting political decisions can be achieved. What advantage is the Internet today for democratic processes?

Transparenz und Open Data

Rolf H. Weber

Transparency, participation and collaboration of civil society are not only characteristics of a modern administration of the 21st century, but also essential features of a forward-looking democracy. Transparency of governmental actions should particularly contribute to constructing democratic processes in comprehensible and open way, thus delineating an element of founding legitimation. Redounding to this transparency are both the opening of governmental data pools and the establishment of a national data infrastructure. The challenges for open data occurring due to digitization have to be consequently tackled and seen as a chance for transparent administrative actions in the future. (ah)

Governance bei der Freigabe von Open Data

Matthias Stürmer

Open data includes data release by authorities, companies and other organisations. In the article, the features of open data are being elucidated, as well as what must be taken into account when approving open data and how potential data bases can be valuated for logical reasons by means of a governance approach. Both relevant challenges and possible bogus arguments against open data reveal difficulties that can be met frequently when releasing data. (ah)

Digital Law-Making and the Publication of Laws in Austria

Günther Schefbeck

The introduction of an electronic support for law-making through a workflow system has made it possible to publish the Austrian Federal Law Gazette in an authentic electronic version by 1 January 2004. Even though meanwhile authentic electronic publication of laws has become a standard throughout Europe, Austria then was a pioneer in rendering authenticity to electronic legislation. Thereby, free and equal access to the laws in force was provided to the majority of Austrian citizens. Nonetheless, there is still a public demand for legal knowledge management to support the citizens in context-sensitively interpreting the laws.

Accountability in internationalen und europäischen Entscheidungsprozessen (Podcast)

Erich Schweighofer

Multistakeholder models and accountability have to be viewed as substitutes of an international institution's democratic legitimacy. With this, other stakeholders exert their influence in addition to its important role for states, whereby their responsibility and accountability has to be scrutinized. Using the example of selected international organisations, such as, in particular, ICANN and EU, potentials as well as frailties of this participation are shown. (ah)

Accountability in internationalen und europäischen Entscheidungsprozessen

Erich Schweighofer

Despite the strong wish of stakeholders for more participation in international relations, only a modified Westphalian system with a strong role for the states and the involvement and co-decision of other stakeholders is realistic. The best practice is currently the multi-stakeholder model with accountability. In this paper, the models of ICANN and the EU with complex co-decision processes are examined and evaluated. Accountability in international and European decision-making is and remains highly significant because only then a fair participation of all relevant stakeholders in the global context can be realized.

Postdemokratie als Simulation

Matthias Drilling

Democratic positions have a long tradition in Switzerland. As a consequence, regulations by law are surpassed widely in urban development. Today, not only a formal but also an informal participation process, that targets both the involvement of the population and the support of collaborative opinion-forming and decision-making, are part of public construction and development projects. But criticism becomes noticeable. Classical procedures like forums and meetings only reach a few and often call for a high intellectual level – at this point, e-participation wants to introduce new ways. (ah)

E-Partizipation für Kinder und Jugendliche

Hans-Dieter Zimmermann

The integration of children and adolescents into political activities of (local) municipalities is an important topic in Switzerland. The utilization of information and communications technology in the content of e-participation particularly is being discussed increasingly. First, the children's and adolescent's motivation for e-participation is discussed from a research perspective. Afterwards, an ongoing project is outlined including first results and lessons learned.

E-Voting – mögliche Vor- und Nachteile aus politikwissenschaftlicher Perspektive (Podcast)

Andreas Ladner

The current e-voting controversy primarily focuses on the aspects of security and data protection. From a political science point of view, there are other questions paramount. In particular, impacts on election turnouts are discussed. E-voting is expected to convince more eligible voters to participate and – most notably – approach young voters. Additionally, e-voting changes the manner of eligible voters dealing with the elections. This could have ununanticipated consequences on the electoral process. (ah)

Politikwissenschaftliche Aspekte von Online-Wahlhilfen

Andreas Ladner

Voting Advice Applications (VAAs) point out to voters which parties and candidates are politically closest to them. Such websites have become increasingly popular in recent years, and studies show that they have an impact on elections and their outcome. From a political scientist perspective, these websites have impacton the very nature of democracy. New opportunities meet challenges. The article calls for transparency as far as the providers of these websites und their functioning is concerned, and implies, that their implications need a broader attention. Voters have to learn how to use the recommendations issued by VAAs. Only then can they lead to better voting. (ah)

Gedanken zu einem negativen Wahlsystem und dessen möglichem positiven Einfluss

Robert Krimmer

Dirk-Hinnerk Fischer

Elections are the heart of democracy. It is thus even more surprising that the election processes have not been changing over the last decades of technological change. The article proposes a developed election process, a process enabled by modern technologies. One special feature of this process is that a vote accounts negatively for the elected entity or person. The proposed continuous system gives the population more involvement and influence within the democracy. The voter is able to adapt the votes to the current developments repeatedly, but the structure of the new process is ensuring a stable development for the democracy.

Partizipative oder simulative Demokratie? (Podcast)

Reinhard Riedl

Whilst the need for citizen participation is growing, constraints in politics are increasing and the local scope of action diminishes. We see on a daily basis, how little control we have over data and how inauthentic many political statements in the internet are. The potential of manipulation on the part of the platform operators is big, and many political actors employ trolls. That’s why thinking about the future of democracy in the era of internet 2.0 is necessary. (ah)

Die Digitalisierung der Demokratie – gelingt die Öffnung des Policy Cycle?

Reinhard Riedl

The actual effects of digital transformation on democracy and the role of the state as well as the future vision of an opening of the policy cycle by means of e-participation are being discussed in this article. Analysed are the reasons for e-participation’s constant failing and how the policy cycle will undergo changes for IT topics even without e-participation. The article is closing with a summary of the lessons learned and the designing of four ideas on how old and new cultural knowledge can be used to further develop digital democracy. (ah)

Partizipatorische Demokratie in der Realverfassung der EU – unterentwickelt und unvollendet (Podcast)

Johannes W. Pichler

Determined by hope, the constitutional convention has devised grandiose civil rights of direct participation in the Union. The Treaty of Lisbon has attached expectation to a strong increase of legitimacy. Those were prominently announced by the Union Treaty: the so-called mutual horizontal civil dialogue of the citizens, the vertical civil dialogue of the civic citizenship with EU institutions, the consultation procedure of the EU Commission, the EU Citizens' Initiative as well as the dialogue about European values. But reality? Disillusioning. (ah)

Verifizierbare Internetwahlen – Technische Lösungen und Grenzen (Podcast)

Rolf Hänni

In the field of applied cryptography, for more than 20 years scientists demand that an electronic voting system has to be verifiable before being used in political elections. Since January 2014, a new regulation of the Federal Chancellery concerning e-voting prescribes that in future, systems have to offer verifiability to be able to increase the percentage of electronic votes. There are many technical solutions, but are they feasible? And does verifiability really give the absolute security that is expected from an electronic voting system? (ah)

Warum es nicht vorwärts geht mit der E-Partizipation (Podcast)

Uwe Serdült

Paradoxically, participants are what is frequently missing on online participation platforms – or their participation remains without consequences. The politic discussion takes place on the online platforms of the big media conglomerates or in private social media. The online election assistance «smartvote» is the only exception to this rule worth mentioning in Switzerland. This is due to the fact, that incentive systems are missing and those platforms are based on false premises about the actual political process. The often decisively important intermediary sector as a negotiator between state and society is being forgotten in the romantic glamorization of direct participation. (ah)

E-Government

Auf dem Weg zum vollautomatisierten Besteuerungsverfahren in Deutschland

Nadja Braun Binder

The German tax procedure is reaching a point where paradigms are shifting. By means of legislative change, the basis for a fully automated tax assessment system is to be provided. The Federal Government’s respective draft law on modernisation of the taxation procedure is scheduled to be adopted within 2016 and should come into force on 1 January 2017. The author outlines the provisions on the introduction of fully automated tax assessment procedures intended in the project and addresses the open legal issues. (ah)

Sicherheitspolitik im Informationszeitalter

Balthasar Glättli

In the security policy discussion, cyber threats as a new challenge are emphasized increasingly from the politically left as well as the right wing. But how does the threat situation really change in the information age? What are the right strategies? And what is the army’s role in this? (ah)

News

Gemeinschaftsmarke WINNETOU wird nicht gelöscht

Jurius

CJEU – The General Court upholds publisher Karl-May’s action against the EU Trademark Office's decision to annul the Community trade mark WINNETOU. The Office should not have granted the application for a declaration of invalidity brought by Constantin Film without assessing, independently, whether the sign Winnetou was descriptive for the goods and services at issue. (Judgement T-501/13)

Tobias Mc Fadden gegen Sony Music Entertainment Germany GmbH

Jurius

CJEU – According to Advocate General Szpunar, the operator of a shop, hotel or bar who offers a Wi-Fi network free of charge to the public is not liable for copyright infringements committed by users of that network. (Judgement C-484/14)

Keine Verantwortlichkeit bei Verwendung von Markennamen «Mercedes-Benz» trotz Löschungsbemühungen

Jurius

CJEU – Former authorised Daimler dealers are not responsible for advertisements which, despite their efforts to have them removed, continue to associate their name with the trade mark «Mercedes-Benz» on the internet Furthermore, Daimler cannot require those dealers to take steps to remove such advertisements from the internet where they have not been ordered. (Judgement C-179/15)

Der Gerichtshof der Europäischen Union startet seine erste App für Smartphones und Tablets

Jurius

The Court of Justice of the European Union today launches its application, CVRIA, for smartphones and tablets, which runs under both IOS and Android.

Parlament verabschiedet EU-Datenschutzreform

Jurius

New EU data protection rules which aim to give citizens back control of their personal data and create a high, uniform level of data protection across the EU fit for the digital era was given their final approval by MEPs on 14 April 2016. The reform also sets minimum standards on use of data for policing and judicial purposes.

Bundesgerichtshof zur Haftung wegen Teilnahme an Internet-Tauschbörsen

Jurius

BGH – The First Civil Chamber, which is responsible for copyright amongst other things, has once again dealt with questions regarding liability for participation in internet exchange platforms. (Judgements I ZR 272/14, I ZR 1/15, I ZR 43/15, I ZR 44/15, I ZR 48/15 and I ZR 86/15) (ah)

Bundesgerichtshof konkretisiert Pflichten des Betreibers eines Ärztebewertungsportals

Jurius

BGH – The plaintiff is a dentist. The defendant runs a portal for searching and rating physicians at the internet address www.jameda.de, where interested persons can access information about doctors. Registered users are also offered the possibility of rating the work of doctors. The rating, which the respective user can provide without stating his real name, occurs in a grade-oriented scale for pre-formulated categories altogether. (Judgement VI ZR 34/15) (ah)

Bundesgerichtshof zum Werktitelschutz von Smartphone-Apps

Jurius

BGH – The First Civil Chamber, which is responsible for trademark law amongst other things, has decided that applications for mobile devices such as smartphones can generally receive work title protection. (Judgement I ZR 202/14) (ah)

Bundesgerichtshof zur Facebook-Funktion «Freunde finden»

Jurius

BGH – The First Civil Chamber, which is responsible for competition law amongst other things, has decided on 14 January 2016 that invitation mails – sent with the aid of the function «find friends» on the internet service «Facebook» – to persons, that are not registered as «Facebook»-members, constitute ineligible harassing advertisement in concerns of competition law. (Judgement I ZR 65/14) (ah)

Bundesgerichtshof zur Zulässigkeit sogenannter «No-Reply» Bestätigungsmails mit Werbezusätzen

Jurius

BGH – The First Civil Chamber, which is responsible for tort law amongst other things, has decided on 15 December 2015 that emails with promotional content sent against the declared will of a consumer constitute an infringement of the general right of privacy. (Judgement VI ZR 134/15) (ah)

Wettbewerb bei Online-Plattformen

Jurius

The existing instruments of the competition and antitrust law are basically sufficient for ensuring a functioning competition in the field of online platforms. The experts invited to an open consultation of the Committee Digital Agenda on 13 April 2016 have agreed on this estimate. Need of improvement has been discovered in the range of market delineation, amongst others. (ah)

Strafrecht gegen Hetze im Netz wirksam

Jurius

The Federal Government thinks that the existing criminal provisions against so-called «Hate Speech» in the internet are sufficient. This is noted in an answer to a minor inquiry of the Bündnis 90/Die Grünen parliamentary group. (ah)

Europäische Datenschutzverordnung: Meinungen

Jurius

The European General Data Protection Regulation has received a positive response from German data protectionists. This was shown clearly in an open consultation of the Committee Digital Agenda. Andrea Voßhoff, Federal Commissioner for Data Protection and Freedom of Information, said that the European General Data Protection Regulation runs at a high level, «despite all the criticism in detail». (ah)

Videoüberwachung in Liegenschaft mit Mietwohnungen

Jurius

BGer – Video recordings in the generally accessible area of estates with rental apartments can infringe the privacy of tenants in an improper way. Whether a lessor is allowed to use surveillance cameras for security reasons without the approval of the tenants has to be decided due to the circumstances in individual cases. (Judgement 4A_576/2015)

Strategie des Bundesrates für eine digitale Schweiz

Jurius

In all aspects of life, Switzerland should use the chances of digitalisation consequently. For this purpose, the Federal Council has adopted the strategy «Digital Switzerland» on 20 April 2016. It applies immediately and should continually evolve in dialog with economy, science, research and civil society. It is essential for the success of Switzerland in the digital space that all stakeholders work together closely. (ah)

Filmaufnahmen zu öffentlichen Urteilsberatungen

Jurius

In the future, the Federal Surpreme Court will make available film recordings of selected public deliberations. In these several minutes long recordings, the negotiations as well as the pronouncements of the respective judgements will be shown. After counselling, the recordings can be watched and downloaded on the homepage of the Federal Surpreme Court. A first recording has been published on 27 April 2016. (ah)

Cyber-Risiken: Bundesrat nimmt Jahresbericht 2015 des Steuerungsausschusses NCS zur Kenntnis

Jurius

In its session of 20 April 2016, the Federal Council has taken note of the 2015 annual report by the steering committee for the implementation status of the «National Strategy to Protect Switzerland from Cyber-Risks (NCS)». In 2015, amongst other things, important goals have been reached. Threat and vulnerability analyses in critical subsectors have been carried out, a position radar for visualizing the current threat situation has been developed and expertise has been extended in order that incidents can be approached faster. (ah)

Die Schweiz hat ein neues Portal für Open Government Data

Jurius

The new Swiss portal for Open Government Data (OGD) opendata.swiss, is online since 2 February 2016. It replaces the former pilot portal opendata.admin.ch. On the platform that is operated by the Federal Archive, the government, the cantons, the communities and other organisations offer disposable data centrally. (ah)

Das Bundesgericht geht auf Twitter

Jurius

As of now, the Federal Supreme Court distributes short messages via Twitter. The individual Tweets concern the dates of open consultations in Lausanne or Lucerne as well as press releases on Judgements of the Federal Supreme Court or the Federal Supreme Court as an institution. (ah)

E-Government Schweiz: Schwerpunktplan 2016–2019 verabschiedet

Jurius

On its meeting of 17 January 2016, the steering committee E-Government Switzerland has approved the first focus plan 2016–2019. This plan lists all actions that are planned to be implemented by government, cantons and communities in the first legislation after adopting the new strategy. It focuses on the erection of basic infrastructures for the increasing expansion of E-Government in Switzerland. (ah)

Bundesrat beschliesst weitere Schritte für staatlich anerkannte elektronische Identitäten

Jurius

For state-approved electronic identities (eID), the Federal Council relies on systems developed by the market. The state should concentrate on the definition of legal frameworks and the provision of identity data. On 13 January 2016, the Federal Council has discussed further steps and charged the FDJP with compiling a consultation draft. (ah)

Ausbau digitaler Services – Präsentation der Handy-Signatur App

Jurius

«With mobile signature, we have a highly innovative, secure instrument for unambiguous identification in the digital world. By increasing internet crime precisely, arguments for the free-of-charge mobile signature are so convincing that in time we have more than 640’000 active signatures. With the new app, we take one technological step further», says state secretary Sonja Steßl at the press conference «Mobile Signature – the secure digital Identity Card. Now available as an App». (ah)

«Bericht Internet-Sicherheit. Österreich 2015» – Präsentation im Bundeskanzleramt

Jurius

«For best exploiting the opportunities of the digital world, we have to create good and secure frame conditions. Cyber security is particularly essential for this», said state secretary Sonja Steßl on the occasion of introducing the 2015 Internet Security Report in the Federal Chancellery. One can get the impression, that the speed of innovation in this area does not know any limits. (ah)

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